CIAL OIA Request Response to Billie Marsh 22 September 2023 PART 3.pdf

From:
Hearings Administrator <[email address]>
Sent:
Wednesday, 30 November 2022 3:06 pm
To:
Hearings Administrator
Subject:
PORPS21 - Notice of Hearing
Attachments:
Notice of Hearing.pdf
Kia ora,

Please find attached the Notice of Hearing related to the Proposed Otago Regional Policy Statement 2021 (excluding
parts determined to be a freshwater planning instrument) and pursuant to Clause 8B of Schedule 1 to the Resource
Management Act 1991.

Ngā mihi
Myriam Lea

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
1

1

Otago Regional Council
Proposed Otago Regional Policy Statement 2021
(excluding parts determined to be a freshwater planning instrument)

Notice of Hearing
Pursuant to Clause 8B of Schedule 1 to the Resource Management Act 1991

DATE:  Monday 23 January 2023.
TIME:  The hearing will commence at 10.30 am
VENUE: ORC Council Chamber, Level 2, Philip Laing House, corner Rattray and Princes Streets, Dunedin

PRELIMINARY
Where there is a conflict, this notice of hearing supersedes any times, dates or directions given in previous
Minutes.
PROVISION OF INFORMATION
1
We inform submitters that the following information has been provided to us by the Council:
a
The Proposed Otago Regional Policy Statement – notified version marked up to
indicate those provisions which are not part of our jurisdiction
b
The summary evaluation of it under section 32 of the Act – notified version
marked up to indicate those provisions which are not part of our jurisdiction
c
Reports under section 42A of the Act
d
Supplementary evidence prepared by the authors of the s42A Report
e
Copies of the submissions on the Proposed Otago Regional Policy Statement
(website versions)

2
Prior to the commencement of the hearing we will also receive from the Council the following
information
f
The summary of decisions requested
g
All national policy statements and national environmental standards listed
within the PORPS
h
The Water Conservation (Kawarau) Order 1997

3
We note that Council has elected to not issue separate documents (PORPS; Section 32
Evaluation Report; Summary of Decisions Requested) with all Freshwater Planning Instrument

2

provisions and material omitted. Rather, and in the interests of retaining the overall sense of
integrated management, Council has elected to shade the freshwater provisions within the
original documents. We record that the distinction, to us, is relatively clear and we are happy
to proceed on this basis.
HEARING ARRANGEMENTS
4
We intend to manage the hearing efficiently, and to give each submitter sufficient opportunity
to explain the basis for the submission. We propose proceeding on the basis of the various
Chapter Headings of the PORPS. We propose to hear the submissions grouped under these
topics.  While not encouraged, because of its effects on the efficiency of the by-chapter
hearing process, if any submitter on topics in more than one group would need to be heard
only once, or would be comfortable with a Zoom presentation, application for leave to do so
will be considered by the hearing panel.  Any application should be forwarded in writing to the
Hearing Administrator using the contact details set out at paragraph [21] below by 9
December 2022.
5
Under section 41B(3) of the Act, we previously issued a direction regarding the provision of
expert evidence.  That timetable was amended in our Minute 3. We also note that the
Council’s s42A Hearing Report and briefs of supplementary evidence have been available on
the Council website since 21 October 2022.  Minute 3 set the time limits for the filing of
evidence and rebuttal evidence.
6
lf there is any preliminary legal issue that should be considered prior to the substantive
hearing we will hear and consider that issue on the first day of the hearing.  Submitters should
identify with the Hearing Administrator by written memorandum all such issues no later than
9 December 2022.  If any are raised, an opportunity will be provided for responses to these,
within a timeframe to be specified.
7
Submitters wishing to address the hearing in te reo must advise the Hearing Administrator by
written memorandum no later than 9 December 2022, in order that arrangements for a
translator to be present are made in a timely manner.
8
If you are presenting a summary of evidence or legal submissions on the day of a hearing, and
that material has not been provided in terms of Minute 3, you are required to bring with you
10 copies of that material for the exclusive use of the hearing panel and Council.
9
The scheduled sitting dates for the Hearing and the order in which the topics will be heard are
set out at Paragraph [16] below.
10
For each topic the Panel anticipates that the Council will give a brief opening statement, the
s42A Report author will answer questions of the Panel; submitters will give legal submissions
or give a brief opening statement; witnesses will answer questions of the Panel.
11
The hearing will be live-streamed on Council’s YouTube channel and will be available for on-
demand viewing following the close of the hearing each sitting day.

3

12
The Council’s audio-visual equipment also provides for remote participation in the hearing. If
a submitter wishes to access this facility, you must advise the Hearing Administrator, by email
at the address given in paragraph [21] below, before Friday 13 January 2023.  The Hearing
Administrator will respond and provide the necessary access code and instructions for remote
access to the hearing.

13
Sitting times for the Hearing will be generally as follows:
Monday:

9.30am – 5.00pm
Tuesday to Thursday:
9.00am – 5.00pm
Friday:

8.30am – 12.30pm
14
Breaks for morning and afternoon tea will be for 15 minutes, and for lunch one hour.  There
will be flexibility around timing of breaks to avoid unnecessary interruptions to submitter
presentations.
15
The venue for the hearing will be at the ORC Council Chamber, Level 2, Philip Laing House,
Princes Street, Dunedin unless otherwise advised by Minute.
SCHEDULING HEARING OF SUBMISSIONS
16
The hearing of submitters who have asked to be heard will be generally scheduled as set out
below:
▪  23 January to 26 January 2023
•  Preliminary Matters; Council Opening; Kai Tahu opening, Part 2 (RMIA &
MW;) Part 1, Part 2 (SRMR)
▪  7 February to 10 February 2023
•  Part 2 (SRMR); Integrated Management; Part 4; Air
▪  13 February to 17 February 2023
•  Urban Form & Development; Historical & Cultural Values
▪  27 February to 3 March 2023
•  Coastal Environment
▪  13 March to 17 March 2023
•  Energy, Infrastructure & Transport
▪  3 April to 5 April 2023
•  Ecosystems & Indigenous biodiversity
▪  17 April to 21 April
•  Hazards & Risks; Ecosystems & Indigenous biodiversity ctd
▪  26 April to 28 April
•  Land & Freshwater

4

▪  1 May to 5 May 2023
•  Natural Features & Landscapes; Land & Freshwater
▪  8 May to 9 May 2023
•  Land & freshwater
▪  29 May 2023
•  Council Closing & Hearing adjourned
17
Please note that this scheduling may be subject to change once we have reviewed the evidence
filed and we have a better idea of likely time requirements for the different topics. Any
changes will be advised by Minute.
18
As noted in Minute 1 each submitter will be scheduled the following times for oral
presentation of their presentation:
i.
If unrepresented by counsel – 15 minutes
ii.
If represented by counsel – 30 minutes (which will include any legal submissions)
iii.
An additional 15 minutes for each expert witness
19
All parties presenting are reminded that the Hearing Panel will have read the evidence and
submissions in advance. Presenters should not, therefore, read this material and should speak
only to the principal points they wish to make.
20
Some submitters may need more time than that allocated in paragraph [18] above.  Any
submitter who needs more time is to advise the Hearing Administrator in writing of the length
of time required and provide detailed reasons as to why more time is needed.  This advice is to
be received by 9 December 2022.
SERVICE OF DOCUMENTS ON COUNCIL
21
Communication with the Hearing Panel is to be emailed to [email address]
or addressed to Otago Regional Council, Private Bag 1954, Dunedin 9054 Attention Hearing
Administrator; or delivered to Otago Regional Council at Level 2, 144 Rattray Street, Dunedin
9016.

Ron Crosby for and on behalf of the Panel

Ron Crosby (chair)
Rauru Kirikiri
Allan Cubitt and
Bianca Sullivan

30  November 2022

From:
Annabel Hawkins
@chapmantripp.com>
Sent:
Thursday, 1 December 2022 11:16 am
To:
[email address]
Subject:
FW: PORPS21 - Notice of Hearing
Kia ora Myriam

Thank you for sending through the Notice of Hearing.

We act for Christchurch International Airport Ltd (submitter 0307) (CIAL).  CIAL’s submission will be
heard in the “Energy, Infrastructure and Transport” session from 13-17 March 2023.

Jo Appleyard from our office will be appearing for CIAL at the hearing.  Due to other commitments she
is only available on 13 and 14 March 2023, so could we please request a time slot for CIAL on either of
those days?  CIAL has two witnesses also appearing who have filed evidence.

Happy to discuss if you require any clarification.

Kind regards / Ngā mihi

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Wednesday, 30 November 2022 3:06 PM
To: Hearings Administrator <[email address]>
Subject: PORPS21 - Notice of Hearing

Kia ora,

Please find attached the Notice of Hearing related to the Proposed Otago Regional Policy Statement 2021 (excluding
parts determined to be a freshwater planning instrument) and pursuant to Clause 8B of Schedule 1 to the Resource
Management Act 1991.

Ngā mihi
Myriam Lea

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
1

www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
2

From:
Annabel Hawkins
@chapmantripp.com>
Sent:
Tuesday, 6 December 2022 12:16 pm
To:
[email address]
Subject:
RE: PORPS21 - Notice of Hearing
Kia ora Myriam

Could you please confirm receipt of my email and request?

Please let me know if you need anything additional from me.

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Annabel Hawkins
Sent: Thursday, 1 December 2022 11:16 am
To: [email address]
Subject: FW: PORPS21 - Notice of Hearing

Kia ora Myriam

Thank you for sending through the Notice of Hearing.

We act for Christchurch International Airport Ltd (submitter 0307) (CIAL).  CIAL’s submission will be
heard in the “Energy, Infrastructure and Transport” session from 13-17 March 2023.

Jo Appleyard from our office will be appearing for CIAL at the hearing.  Due to other commitments she
is only available on 13 and 14 March 2023, so could we please request a time slot for CIAL on either of
those days?  CIAL has two witnesses also appearing who have filed evidence.

Happy to discuss if you require any clarification.

Kind regards / Ngā mihi

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Wednesday, 30 November 2022 3:06 PM
1

To: Hearings Administrator <[email address]>
Subject: PORPS21 - Notice of Hearing

Kia ora,

Please find attached the Notice of Hearing related to the Proposed Otago Regional Policy Statement 2021 (excluding
parts determined to be a freshwater planning instrument) and pursuant to Clause 8B of Schedule 1 to the Resource
Management Act 1991.

Ngā mihi
Myriam Lea

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
2

From:
Annabel Hawkins <
@chapmantripp.com>
Sent:
Thursday, 8 December 2022 11:53 am
To:
Hearings Administrator
Subject:
RE: PORPS21 - Notice of Hearing
Hi Myriam

No problem – thanks for coming back to me.

Following on from my request, Ms Appleyard has now had another plan review hearing set down on
Monday 13 March 2023, so we wondered if it would be possible to have CIAL’s time slot on Tuesday 14
March 2023?

If you were able to please confirm this that would be much appreciated (it is becoming quite a juggle
for hearing time early next year!).

Many thanks and happy to discuss if needed.

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Wednesday, 7 December 2022 12:49 pm
To: Annabel Hawkins
@chapmantripp.com>
Subject: RE: PORPS21 - Notice of Hearing

Hi Annabel,

Yes, we have well received your request.
Sorry for the delayed answer.

Best regards,
Myriam

From: Annabel Hawkins <
@chapmantripp.com>
Sent: Tuesday, 6 December 2022 12:16 p.m.
To: Hearings Administrator <[email address]>
Subject: RE: PORPS21 - Notice of Hearing

Kia ora Myriam

Could you please confirm receipt of my email and request?

Please let me know if you need anything additional from me.

Kind regards
1

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.

Disclaimer
This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.
3

From:
Hearings Administrator <[email address]>
Sent:
Friday, 9 December 2022 3:22 pm
To:
Annabel Hawkins
Subject:
RE: PORPS21 - Notice of Hearing
Hi Annabel,

I transmitted your concerns and demand to the panel.
I am sorry I cannot guarantee anything.

Best regards,
Myriam

From: Annabel Hawkins
@chapmantripp.com>
Sent: Thursday, 8 December 2022 11:53 a.m.
To: Hearings Administrator <[email address]>
Subject: RE: PORPS21 - Notice of Hearing

Hi Myriam
No problem – thanks for coming back to me.
Following on from my request, Ms Appleyard has now had another plan review hearing set down on
Monday 13 March 2023, so we wondered if it would be possible to have CIAL’s time slot on Tuesday 14
March 2023?
If you were able to please confirm this that would be much appreciated (it is becoming quite a juggle
for hearing time early next year!).
Many thanks and happy to discuss if needed.
Kind regards
ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Hearings Administrator <[email address]>
Sent: Wednesday, 7 December 2022 12:49 pm
To: Annabel Hawkins <
@chapmantripp.com>
Subject: RE: PORPS21 - Notice of Hearing
Hi Annabel,
Yes, we have well received your request.
Sorry for the delayed answer.
Best regards,
Myriam
From: Annabel Hawkins
@chapmantripp.com>
Sent: Tuesday, 6 December 2022 12:16 p.m.
To: Hearings Administrator <[email address]>
Subject: RE: PORPS21 - Notice of Hearing
Kia ora Myriam
Could you please confirm receipt of my email and request?
Please let me know if you need anything additional from me.
Kind regards
1

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Annabel Hawkins
Sent: Thursday, 1 December 2022 11:16 am
To: [email address]
Subject: FW: PORPS21 - Notice of Hearing
Kia ora Myriam
Thank you for sending through the Notice of Hearing.
We act for Christchurch International Airport Ltd (submitter 0307) (CIAL). CIAL’s submission will be
heard in the “Energy, Infrastructure and Transport” session from 13-17 March 2023.
Jo Appleyard from our office will be appearing for CIAL at the hearing. Due to other commitments she
is only available on 13 and 14 March 2023, so could we please request a time slot for CIAL on either of
those days? CIAL has two witnesses also appearing who have filed evidence.
Happy to discuss if you require any clarification.
Kind regards / Ngā mihi
ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Hearings Administrator <[email address]>
Sent: Wednesday, 30 November 2022 3:06 PM
To: Hearings Administrator <[email address]>
Subject: PORPS21 - Notice of Hearing
Kia ora,
Please find attached the Notice of Hearing related to the Proposed Otago Regional Policy Statement 2021 (excluding
parts determined to be a freshwater planning instrument) and pursuant to Clause 8B of Schedule 1 to the Resource
Management Act 1991.
Ngā mihi
Myriam Lea

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz
Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
Disclaimer
2

This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.

Disclaimer
This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.
3

From:
Annabel Hawkins
@chapmantripp.com>
Sent:
Sunday, 11 December 2022 9:31 pm
To:
Hearings Administrator
Subject:
RE: PORPS21 - Notice of Hearing
Hi Myriam

Thank you – that is much appreciated.

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Friday, 9 December 2022 3:22 pm
To: Annabel Hawkins <
@chapmantripp.com>
Subject: RE: PORPS21 - Notice of Hearing

Hi Annabel,

I transmitted your concerns and demand to the panel.
I am sorry I cannot guarantee anything.

Best regards,
Myriam

From: Annabel Hawkins <
@chapmantripp.com>
Sent: Thursday, 8 December 2022 11:53 a.m.
To: Hearings Administrator <[email address]>
Subject: RE: PORPS21 - Notice of Hearing

Hi Myriam
No problem – thanks for coming back to me.
Following on from my request, Ms Appleyard has now had another plan review hearing set down on
Monday 13 March 2023, so we wondered if it would be possible to have CIAL’s time slot on Tuesday 14
March 2023?
If you were able to please confirm this that would be much appreciated (it is becoming quite a juggle
for hearing time early next year!).
Many thanks and happy to discuss if needed.
Kind regards
ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

1

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Hearings Administrator <[email address]>
Sent: Wednesday, 7 December 2022 12:49 pm
To: Annabel Hawkins <
@chapmantripp.com>
Subject: RE: PORPS21 - Notice of Hearing
Hi Annabel,
Yes, we have well received your request.
Sorry for the delayed answer.
Best regards,
Myriam
From: Annabel Hawkins
@chapmantripp.com>
Sent: Tuesday, 6 December 2022 12:16 p.m.
To: Hearings Administrator <[email address]>
Subject: RE: PORPS21 - Notice of Hearing
Kia ora Myriam
Could you please confirm receipt of my email and request?
Please let me know if you need anything additional from me.
Kind regards
ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Annabel Hawkins
Sent: Thursday, 1 December 2022 11:16 am
To: [email address]
Subject: FW: PORPS21 - Notice of Hearing
Kia ora Myriam
Thank you for sending through the Notice of Hearing.
We act for Christchurch International Airport Ltd (submitter 0307) (CIAL). CIAL’s submission will be
heard in the “Energy, Infrastructure and Transport” session from 13-17 March 2023.
Jo Appleyard from our office will be appearing for CIAL at the hearing. Due to other commitments she
is only available on 13 and 14 March 2023, so could we please request a time slot for CIAL on either of
those days? CIAL has two witnesses also appearing who have filed evidence.
Happy to discuss if you require any clarification.
Kind regards / Ngā mihi
ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com
From: Hearings Administrator <[email address]>
Sent: Wednesday, 30 November 2022 3:06 PM
To: Hearings Administrator <[email address]>
Subject: PORPS21 - Notice of Hearing
Kia ora,
Please find attached the Notice of Hearing related to the Proposed Otago Regional Policy Statement 2021 (excluding
parts determined to be a freshwater planning instrument) and pursuant to Clause 8B of Schedule 1 to the Resource
Management Act 1991.
2

Ngā mihi
Myriam Lea

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz
Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
Disclaimer
This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.

Disclaimer
This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.
3

From:
Hearings Administrator <[email address]>
Sent:
Wednesday, 7 December 2022 4:39 pm
To:
Cc:

Subject:
Decision of Hearing Commissioners on your request for an extension of time
Attachments:
Decision on Sustainable Tarras request for time extension.pdf
Kia ora,

Please find attached the decision of hearing commissioners on the request by Sustainable Tarras Incorporated
Society for an extension of time to file further submissions.
Ngā mihi,
Myriam

Myriam Lea
HEARINGS ADMINISTRATOR

P
| M

[email address]
www.orc.govt.nz
Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.
1

Otago Regional Council
Proposed Otago Regional Policy Statement 2021
(excluding parts determined to be a freshwater planning instrument)

DECISION OF HEARING COMMISSIONERS
on request for extension of time to file further submissions
by Sustainable Tarras Incorporated Society.

The Request

1.  A request was made in writing on 17 October, 2022 By Mr. B. Farrell of Cue Environmental for
an extension of time to enable Sustainable Tarras Incorporated Society (‘Sustainable Tarras’) to
file further submissions in support of relief sought by Forest & Bird, and in opposition to relief
sought by Dunedin Airport, Queenstown Airport and Christchurch Airport.

2.  The grounds advanced in support of the request were in summary:

(a)  that an extension would not prejudice any other party; that the primary submitters’
positions would not be affected as the further submissions proposed do not add any ‘new’
positions in that they either promote as- notified provisions or support the position of a
primary submitter.
(b)  That Sustainable Tarras represents a significant part of the community who wish to express
their views on matters raised in the further submissions;
(c)  The grant of the extension will not delay the hearing process with the time-table set being
unaffected.

Consideration

3.  The Panel notes that the period for making further submissions closed on 1 December
2021.  Since then Council has prepared s42A Reports and supplementary evidence following
prehearing meetings with some parties. All of that process has occurred against a background
of certainty that the period for submissions and further submissions had long since closed.

4.  The Panel is also very cognisant that allowing an extension to file a further submission well out
of time will affect the party status involved and opens potential appeal rights which may well be
regarded as prejudicial by other existing parties. The ground advanced in support of the
extension that no potential prejudice arises is, therefore, not correct.

5.  The Panel is also concerned to note that an extension of time is being sought over ten months
after the last date for filing further submissions. Ordinarily it would be expected that to try to
explain why such an extraordinary delay has occurred some very compelling reasonable
explanatory reasons would be advanced as to the failure to file the further submissions in time.
No such explanation has been offered at all.

6.  The Panel is most concerned that if it was to grant such an extraordinary extension now, even
after a hearing timetable has issued and s.42A reports and supplementary evidence provided, in

the absence of any compelling explanation for the delay, it would open the possibility of other
similar requests.

7.  Arguments as to the significance of Sustainable Tarras in the community are insufficient to
persuade the Panel that such an extraordinary extension of time should be granted when the
other factors outlined above are taken into account.

Decision

8.  The request for extensions of time to file further submissions by Sustainable Tarras is declined.

Ron Crosby for and on behalf of the Panel

Ron Crosby (chair)
Rauru Kirikiri
Allan Cubitt and
Bianca Sullivan

5 December 2022

Cc: Jo Appleyard <
@chapmantripp.com>
Subject: RE: pORPS Hearing Zoom Link Tuesday 14 March

Hi Kate

Thank you for sending the Zoom link through for next Tuesday’s hearing.

Jo Appleyard will be presenting legal submissions for Christchurch International Airport Ltd
(CIAL).  She was going to appear in person, with CIAL’s witnesses Rhys Boswell and Matthew
Bonis.  She unfortunately now needs to
.  So she
will present via Zoom while Mr Boswell and Mr Bonis will still attend in person.

Due
, Ms Appleyard will be unavailable from 12.30pm on Tuesday, so we wondered if it
might be possible to move CIAL up in the order of submitters to accommodate this?

I have copied in counsel for the two earlier submitters (Transpower and Aurora Energy/Network
Waitaki/PowerNet) and hope they may be able to confirm that they are happy to move the order
slightly.  It would probably be fine to slot in either before or after Transpower.

Thank you all.

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Friday, 10 March 2023 10:25 am
To:
; Annabel Hawkins <
@chapmantripp.com>
Subject: pORPS Hearing Zoom Link Tuesday 14 March

Good morning,

Please find below an AVL link for your hearing attendance next week. Please pass this link on to anyone in your
team who requires it, if you would like me to send this to them directly and keep them up to date with appearance
times, please do let me know.

We would appreciate if you are available to appear when we get to you in the list.

We will notify you approximately 30 minutes prior to the time we expect you will be required to start, noting that
although there are indicated timeframes from the schedule, this may not be fol owed exactly.

Please ensure that you are logged in 10 minutes before this time – this allows you to make sure that Zoom is
working on your device.

You will enter a waiting room when you open the zoom link and will be admitted from this waiting room when we
are ready for you. As you will not be able to see or hear the zoom call from the waiting room, I would recommend
keeping the livestream open until you are admitted to the Zoom call, but please remember to exit this page once
your microphone is turned on.

Please make sure that your microphone and camera are turned on.

2

Please let me know if you have any issues accessing the Zoom link.

Topic: pORPS Hearing - Week 5 EIT, Day 2
Time: Mar 14, 2023 08:00 AM Auckland, Wellington

Join Zoom Meeting
https://otagorc.zoom.us/j/82442513636?pwd=NGRVVUxqWXNOcnBpMVl3a21YdkhFZz09

Meeting ID: 824 4251 3636
Passcode: 691043

Kind regards,

Kate McKinlay
Hearings Administrator


P
| M

@orc.govt.nz
www.orc.govt.nz

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disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.


Disclaimer
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professional privilege. If you receive this email in error please immediately notify the sender and delete the email.
3

From:
Hearings Administrator <[email address]>
Sent:
Monday, 13 March 2023 9:43 am
To:
Annabel Hawkins
Cc:
Jo Appleyard
Subject:
RE: pORPS Hearing Zoom Link Tuesday 14 March
Hi Annabel,

Just confirming that I have moved you to a time slot prior to the lunch break.  I will send you both an email when we
are nearly ready for you to appear online.

Kind regards,

Kate McKinlay
Hearings Administrator

P
| M

@orc.govt.nz
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.

From: Annabel Hawkins <
@chapmantripp.com>
Sent: Friday, 10 March 2023 1:53 p.m.
To: Hearings Administrator <[email address]>;

Cc: Jo Appleyard
@chapmantripp.com>
Subject: RE: pORPS Hearing Zoom Link Tuesday 14 March

Hi Kate

Thank you for sending the Zoom link through for next Tuesday’s hearing.

Jo Appleyard will be presenting legal submissions for Christchurch International Airport Ltd
(CIAL).  She was going to appear in person, with CIAL’s witnesses Rhys Boswell and Matthew
Bonis.  She unfortunately now needs to
.  So she
will present via Zoom while Mr Boswell and Mr Bonis will still attend in person.

Due
, Ms Appleyard will be unavailable from 12.30pm on Tuesday, so we wondered if it
might be possible to move CIAL up in the order of submitters to accommodate this?

I have copied in counsel for the two earlier submitters (Transpower and Aurora Energy/Network
Waitaki/PowerNet) and hope they may be able to confirm that they are happy to move the order
slightly.  It would probably be fine to slot in either before or after Transpower.

Thank you all.

Kind regards

1

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Friday, 10 March 2023 10:25 am
To:
; Annabel Hawkins <
@chapmantripp.com>
Subject: pORPS Hearing Zoom Link Tuesday 14 March

Good morning,

Please find below an AVL link for your hearing attendance next week. Please pass this link on to anyone in your
team who requires it, if you would like me to send this to them directly and keep them up to date with appearance
times, please do let me know.

We would appreciate if you are available to appear when we get to you in the list.

We will notify you approximately 30 minutes prior to the time we expect you will be required to start, noting that
although there are indicated timeframes from the schedule, this may not be fol owed exactly.

Please ensure that you are logged in 10 minutes before this time – this allows you to make sure that Zoom is
working on your device.

You will enter a waiting room when you open the zoom link and will be admitted from this waiting room when we
are ready for you. As you will not be able to see or hear the zoom call from the waiting room, I would recommend
keeping the livestream open until you are admitted to the Zoom call, but please remember to exit this page once
your microphone is turned on.

Please make sure that your microphone and camera are turned on.

Please let me know if you have any issues accessing the Zoom link.

Topic: pORPS Hearing - Week 5 EIT, Day 2
Time: Mar 14, 2023 08:00 AM Auckland, Wellington

Join Zoom Meeting
https://otagorc.zoom.us/j/82442513636?pwd=NGRVVUxqWXNOcnBpMVl3a21YdkhFZz09

Meeting ID: 824 4251 3636
Passcode: 691043

Kind regards,

Kate McKinlay
Hearings Administrator

2

P
| M

@orc.govt.nz
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.

Disclaimer
This email is intended solely for the use of the addressee and may contain information that is confidential or subject to legal
professional privilege. If you receive this email in error please immediately notify the sender and delete the email.
3

From:
Annabel Hawkins <
@chapmantripp.com>
Sent:
Tuesday, 14 March 2023 10:53 am
To:
Hearings Administrator
Subject:
RE: Legal submissions
Attachments:
McElroy HC Auckland CIV-2006-404-5980, 27 June 2008 (1).pdf; McElroy v Auckland
International Airport [2009] NZCA_621 [Craigie Trust].pdf
Hi Kate

Ms Appleyard referenced the two McElroy (High Court and Court of Appeal) cases during the
presentation of legal submissions.

For the Panel’s reference, copies of the cases are attached.

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Annabel Hawkins
Sent: Tuesday, 14 March 2023 10:34 am
To: Hearings Administrator <[email address]>
Subject: RE: Legal submissions

Hi Kate

Yes sure – please see attached

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Tuesday, 14 March 2023 10:28 am
To: Annabel Hawkins
@chapmantripp.com>
Subject: Legal submissions

Hi Annabel,

Could you please send through a PDF of CIAL’s legal submissions so that I can upload these to the website.
1

Kind regards,

Kate McKinlay
Hearings Administrator

P
| M

@orc.govt.nz
www.orc.govt.nz

Important notice
This email contains information which is confidential and may be subject to legal privilege. If you are not the intended recipient, you must not peruse, use,
disseminate, distribute or copy this email or attachments. If you have received this in error, please notify us immediately by return email or telephone (03 474-
0827) and delete this email. The Otago Regional Council accepts no respons bility for changes made to this email or to any attachments following the original
transmission from its offices. Thank you.

2

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV.2006 404 005980
BETWEEN
MICHAEL SHANE MCELROY
JOHN WARWICK LAMBIE and
HUGH DRUMMOND LAMBIE AS
TRUSTEES OF THE CRAIGIE TRUST
Plaintiffs
AND
AUCKLAND INTERNATIONAL
AIRPORT LIMITED
Defendant
Hearing:
10-14, 17-19 March 2008
Counsel:
Colin R Carruthers QC, Brian Dickey and Kate Bannister for
Plaintiffs
Alan R Galbraith QC, Sarah Katz and Anna Harris for Defendant
Judgment:
27 June 2008
JUDGMENT OF WILLIAMS J
This judgment was delivered by
The Hon. Justice Williams
on
27 June 2008 at 2:00pm
pursuant to R 540(5) of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
A.
All the plaintiffs’ claims against the defendant fail though Auckland
International Airport Ltd is subject to the obligations in s 40 of the
Public Works Act 1981 but the land formerly owned by the plaintiffs and
held for the public work of an “aerodrome” is and will continue to be
required for that public work or that, it no longer being required for that
public work, it remains held for the public work of an “airport”.
MICHAEL SHANE MCELROY And Ors V AUCKLAND INTERNATIONAL AIRPORT LIMITED HC AK
CIV.2006 404 005980 [27 June 2008]

B.
Had it been necessary so to do, the Court would have concluded that it
would not have been impracticable but it would have been unreasonable
or unfair to require Auckland International Airport Limited to offer the
land back to the plaintiffs and that there had been a significant change in
the character of the land for the purposes of or connected with the public
work for which the land is held.
C.
Costs are to be dealt with as in para [231] of this judgment.
____________________________________________________________________
TABLE OF CONTENTS
Paragraph
Introduction
[1]
Section 40
[7]
The Taking of the Craigie Trust Land
[8]
(1)
Background
[8]
(2)
Establishment deeds
[13]
(3)
Acquisition of Craigie Trust land
[25]
Questions for Resolution
[29]
Does s 40 of the 1981 Act apply to the airport company or, as it would
have it, does it hold its land pursuant to the Finance (No.3) Act 1944,
the Land Act 1948 and the Reserves Act 1977?
(1)
Statutory Definitions
[30]
(2)
Joint Venture Airports
[37]
(3)
Submissions and Authorities
[42]
(4)
Discussion and Decision
[94]
Section 40 of the 1981 Act applying to the airport company, does it
still hold the Craigie Trust land for “any public work” and is the land
“no longer required for that or any other public work” and what is the appropriate
definition of the status of the land,“aerodrome” or something else?
[115]
(1)
Aviation Experts
[115]
(2)
Other Evidence
[145]
(3)
Submissions
[178]
(4)
Discussion and Decision
[189]
Had the Craigie Trust land been shown to be no longer required for
the public work of an “aerodrome” or “airport”, would it have been
shown that it would be impracticable, unreasonable or unfair to
require it to be offered back to the plaintiffs?
[207]
2

Had the Craigie Trust land been shown to be no longer required for a public work
would it have been held that there had been a significant change in the character of
the land such that AIAL would not have been required to offer it back to the
plaintiffs?
[225]
Conclusion
[231]
Introduction
[1]
The plaintiffs are the current Trustees of the Craigie Trust following
resettlement on 18 July 1968 of the H D Lambie Trust.
[2]
The defendant is the publicly listed company which, as its name implies,
owns and operates Auckland International Airport.
[3]
The airport company (or “AIAL”) is the owner of 36.4260ha (all CT 78D/195
North Auckland Land Registry) taken from the Craigie Trust under the Public Works
Act 1928 (“the 1928 Act”). 1
[4]
In this proceeding the Craigie Trust asserts that when the Public Works Act
1981 (“the 1981 Act”) came into force on 1 February 1982, and since, the Crown
was under an obligation under s 40 of the 1981 Act to offer the land back to the Trust
at its value on 1 February 1982 or within a reasonable time, 18-24 months,
thereafter, and the airport company has succeeded to the Crown’s s 40 obligations.
The Trust accordingly seeks a declaration requiring the airport company to offer the
land back to the plaintiffs at the price applicable at 1 February 1982 or up to
24 months thereafter as the land is no longer required for the public work purpose of
an “aerodrome” for which it was taken and held.
[5]
The airport company raises a number of defences. It asserts the Trust land is
still being used as an “aerodrome” or is still required for the “public work” or
“essential work” for which it was acquired or for another “public work”, namely an

1 Throughout this judgment, it is convenient to refer to the land so taken from the Craigie Trust as the
“Craigie Trust land” or the “Trust land” despite the Trust not having owned it for over 30 years. It is
to be hoped the plaintiffs take no offence from that shorthand description.
3

“airport”. It asserts the Trust has no rights against it under the 1928 Act or the 1981
Act, s 3(3D) of the Airport Authorities Act 1966 (the “Authorities Act”), or s 7(4A)
of the Auckland Airport Act 1987 (the “Airport Act”). It further asserts that, even if
it is subject to an obligation under s 40, it would be impracticable, unreasonable or
unfair to require it to offer to sell the land to the Craigie Trust or the land has
undergone a significant change of character, all for reasons which will be discussed
in the course of this judgment.
[6]
The Craigie Trust land and its present development is shown on the aerial
photograph attached as Annexe “A” and its location within the airport company’s
land, including the second runway now under construction, appears on the further
aerial photograph Annexe “B”.
Section 40
[7]
To set the scene, it is appropriate to recount the terms of s 40. In its present
form it relevantly reads:
40
Disposal to former owner of land not required for public work
(1)
Where any land held under this or any other Act or in any
other manner for any public work—
(b)
Is not required for any other public work; and 2
(c)
Is not required for any exchange under section 105 of this
Act—
the chief executive of the department within the meaning of section
2 of the Survey Act 1986 or local authority, as the case may be, shall
endeavour to sell the land in accordance with subsection (2) of this
section, if that subsection is applicable to that land.
(2)
Except as provided in subsection (4) of this section, the chief
executive of the department within the meaning of section 2 of the
Survey Act 1986 or local authority, unless—

2 As observed in Bennett v Waitakere City Council (HC AK Civ.2005-404-7348 14 May 2007)
(under appeal) to avoid repetitiousness, references to the criteria in s 40(1)(a)(b), unless expressed
otherwise, are to be deemed to include the less frequent exchange for which s 40(1)(c) provides and
since the Cadastral Survey Act 2002 repealed the Survey Act 1986 the references in s 40 are
presumably now intended to refer to the Chief Executive or the Surveyor-General though the statutory
amendments do not appear as yet to say as much.
4

(a)
He or it considers that it would be impracticable,
unreasonable, or unfair to do so; or
(b) There has been a significant change in the character of the
land for the purposes of, or in connection with, the public
work for which it was acquired or is held—
shall offer to sell the land by private contract to the person
from whom it was acquired or to the successor of that
person—
(c)
At the current market value of the land as determined by a
valuation carried out by a registered valuer; or
(d)
If the chief executive of the department within the meaning
of section 2 of the Survey Act 1986 or local authority
considers it reasonable to do so, at any lesser price.
(2A)
If the chief executive of the department within the meaning of
section 2 of the Survey Act 1986 or local authority and the offeree
are unable to agree on a price following an offer made under
subsection (2) of this section, the parties may agree that the price be
determined by the Land Valuation Tribunal.
(3)
Subsection (2) of this section shall not apply to land acquired after
the 31st day of January 1982 and before the date of commencement
of the Public Works Amendment Act (No 2) 1987 for a public work
that was not an essential work. Where the chief executive of the
department within the meaning of section 2 of the Survey Act 1986
or local authority believes on reasonable grounds that, because of the
size, shape, or situation of the land he or it could not expect to sell
the land to any person who did not own land adjacent to the land to
be sold, the land may be sold to an owner of adjacent land at a price
negotiated between the parties. 3

3 Section 40(1)(b) originally also spoke of the land being acquired for any “essential work” as defined
in s 2. However, from 31 March 1987 the Public Works Amendment Act (No.2) 1987 omitted the
definition of “essential work” and the words “essential work” from s 40(1)(b) and substituted the
phrase “other public work”. It was not suggested these amendments were material to this claim and
“essential work” is accordingly not separately discussed.
5

The taking of the Craigie Trust land
(1)
Brief background
[8]
Since the late 1920s aircraft have landed and taken off from the Mangere land
on which Auckland International Airport stands. In 1928 Charles Kingsford Smith
and Charles Ulm landed there, then the home of the Auckland Aero Club.
Jean Batten landed there after her famous solo flight from England in October 1936.
But it was not, for many years, the only, or indeed the principal, airport in the
Auckland region. That was Whenuapai then used jointly by RNZAF and civilian
aircraft.
[9]
After World War II a number of studies were undertaken to settle on the site
for a major civil airport in the Auckland region servicing both internal and
international flights. That followed receipt in 1948 of a report by Sir Frederick
Tymms on the future of civil aviation in this country.
[10]
In November 1955, Cabinet approved the Mangere site for a future
international airport and by 1959 the Crown owned most of the land required.
[11]
The Crown and the Mayors of the many local bodies in Auckland jointly
instructed an experienced airport planner, Leigh Fisher & Associates, to advise on
the requirements for a new Auckland international airport. In a comprehensive
report dated 11 May 1959, Mr Fisher presciently covered developments in aviation
in recent years and likely developments in international traffic, aircraft types and
domestic and international air traffic over the years to come. Of present interest, the
report was sufficiently far sighted to recommend provision be made for two runways
additional to the present east-west runway, one of which was to run parallel with the
existing runway and would, if built where recommended, have crossed the Craigie
Trust land.
[12]
Mr Fisher agreed with the Mangere choice and urged its expeditious
development. His recommendations for buildings included hangars, cargo buildings,
fuel storage, rental car accommodation, parking areas, an “inn or hotel” plus a
6

“filling station and car service garage”, though he said that “in an industry as subject
to technological obsolescence as aviation, no buildings should be designed for a
useful life in excess of 30 years”.
(2)
Establishment deeds
[13]
The plethora of local bodies in the Auckland region at the time hampered
progress but on 24 September 1960 the Crown and Auckland City Council as lead
local body entered into an agreement for sharing the cost of development and airport
operations. The deed said:
… he intention of the parties hereto is that the Airport shall at all times be
capable of serving all present and future air traffic whether internal or
international permitted by the Government to operate in and out of New
Zealand and that any extension and/or strengthening of the runway, the
construction of additional runways and the construction of buildings and
other works necessary for the efficient and economical operation of the
airport as an international airport that may be necessary to achieve such
intention … shall be constructed from time to time
[14]
The provisions of s 31 of the Finance (No. 3) Act 1944 (the “1944 Act”) were
applied by the deed to the “purchase or acquisition of the land required for the
development of the International Airport and the carrying out of the present and
future works”. That section provided that “notwithstanding anything to the contrary
in any Act or rule of law” and in relation to land “whether a public work within the
meaning of the [1928] Act or not”, where the Ministers of Finance and Works
decided any work was of both national and local importance – as Auckland
International was declared to be by notice in the “New Zealand Gazette” (24
November 1960, p 1846) – then the Minister of Works and any local authority could
enter into agreements for the “acquisition, execution, control and management of the
work or scheme as may to them seem most suited to the circumstances”. Subsection
(2) provided for possible provisions in such agreements and subsection (3) provided:
Notwithstanding anything to the contrary in the principal Act, any land
required for any work or scheme in respect of which an agreement has been
made under this section may be taken or acquired as for a public work under
the [1928] Act either by the Minister or by any local authority which is a
party to the agreement.
7

[15]
The deed defined “airways facilities” as safety systems and all other
“buildings, accommodation and other services and facilities as the Minister in
Charge of Civil Aviation thinks necessary for the purpose of providing for the safety
and efficient operation of aircraft engaged in civil aviation”.
[16]
Any land acquired for future works was to be vested in the Crown and if
“used for the International Airport or ancillary aviation purposes shall be under the
control and management of the Council”. Land “no longer required for airways or
other ancillary aviation facilities”, including buildings, passed to Council for “use in
connection with the general purposes of the International Airport”.
[17]
The Council was to apply for a “Public Aerodrome Licence” for the airport.
[18]
The parties had full rights at their own expense to construct, alter and remove
any buildings and the deed debarred any building or construction which might
“affect the future development of the International Airport … within the boundaries”
without the parties’ consent, though Council had power to grant leases or licences to
occupy any land within the airport boundaries and “also develop additional amenities
or facilities”.
[19]
Council had a similar power to let concessions for a list of facilities and “for
such other amenities of any kind whatsoever as do not interfere with the efficient
administration” of the airport.
[20]
That deed was supplanted during airport construction by a further deed dated
25 November 1963 (though deemed operative from 24 September 1960). Its recitals
repeated that the airport should “at all times be capable of serving all present and
future air traffic whether internal or international” and provided for the construction
of “additional runways and buildings and other works necessary for the efficient and
economical operation of the airport as an international airport”. The deed also
provided :
Should at any time the whole or any part of the Airport as from time to time
extended cease to be required for the Airport, then so much as is not required
therefor shall be disposed of as the parties to this deed may agree …
8

[21]
The deed obliged the Minister to arrange to buy or acquire the land shown in
an attached plan. It included the Craigie Trust land. Once the parties agreed on the
nature of future construction, the Minister was to have those works completed.
[22]
A subsequent deed bound all the other Auckland local bodies in existence at
the time to the terms of those establishment deeds.
[23]
Following the passing of the Auckland Regional Authority Act 1963, the
ARA assumed liability for the functions previously assumed by the councils and in a
deed dated 14 April 1966 the Crown and the ARA agreed:
… that the Principal Deed shall be varied so as to provide that all land now
or hereafter acquired for the Airport or for ancillary aviation purposes shall
pursuant to section 19 of the Reserves and Domains Act 1953 be vested in
the Authority to be held in Trust for aerodrome purposes
as defined in the principal deed.
[24]
Auckland International Airport officially opened on 29 January 1966 with the
interim terminal building housing necessary facilities but intended ultimately for
cargo.
(3)
Acquisition of Craigie Trust land
[25]
The Crown acquired the Craigie Trust land over a period.
[26]
In 1971 it gave notice it intended to acquire 23 acres of the Craigie Trust land
to the south of what is now Tom Pearce Drive. After objection by Mr J W Lambie,
son of the settlor who was farming the land at the time, and negotiations over the
Crown’s requirements, it was agreed in about April 1971 that only seven acres would
then be acquired, compulsorily if agreement as to access and compensation could not
be reached, with the balance being acquired later.
[27]
Though counsel’s submissions as to the formal process by which the Crown
implemented its intention showed the process to be somewhat unclear, perhaps even
contradictory , the following are relevant:
9

a)
By “Gazette” notice of 29 March 1974 published on 4 April 1974
(p 613) the Crown gave notice under the 1928 Act of its intention to
take 33.6260ha of the Trust’s land for an “aerodrome” and use it to
realign George Bolt Drive and erect a cargo shed.
b)
By “Gazette” notice dated 23 January 1975 published on 30 January
1975 (p 141) “agreement to that effect having been entered into”,
90
acres 1.7
perches was taken under the 1928 Act for an
“aerodrome” from 30 January 1975. That included the whole of the
Craigie Trust land. The Trust consented in an agreement dated 3
October 1974 to the taking of the land with compensation deferred
pending resolution of zoning issues and lease-back arrangements.
c)
By “Gazette” notice dated 11 November 1977 published on
1 December 1977 (p 3145) the 90 acres 1.7 perches (and other land)
was declared Crown land subject to the Land Act 1948 from 1
December 1977.
d)
By “Gazette” notice dated 2 October 1978 published on 12 October
1978 (p 2768) the land, now again described in decimal terms but as
36.4260ha was “under the Land Act 1948, set aside as reserves for
local purpose (‘aerodrome’)” and pursuant to the Reserves Act 1977
vested in the ARA in trust for that purpose and under the deeds of 25
November 1963 and 14 April 1966.
e)
Declaring land acquired under the 1928 Act to be Crown land subject
to the Land Act 1948 and then setting it aside as a reserve for local
purposes under, first, the Reserves and Domains Act 1953 and, later,
after repeal of that statute, under the Reserves Act 1977 was said by
Mr Carruthers QC, senior counsel for the Trust, to have been standard
for the acquisition of land at the time. Counsel submitted it may have
been a device designed to avoid triggering the offer back provisions
under the 1928 Act which directed that land no longer required for the
10

public work purpose for which it had been acquired to be offered
back, not to former owners or their descendants, but to neighbours.
[28]
The trail leading to the Craigie Trust land now being owned by the airport
company continues:
a)
By “Gazette” notice dated 30 October 1980 published on
13 November 1980 (p 3326) the “reserve” comprising the airport land
was declared under the Reserves Act 1977 to be classified as a
“reserve for local purposes (site for aerodrome)”
b)
For some unexplained reason, an essentially identical “Gazette”
notice, this time dated 10 June 1982 and published on 22 July 1982,
(p 2431) again classified the airport land as a “reserve for local
purpose (site for an aerodrome)” under the Reserves Act 1977. The
1981 Act was in force when this notice was published.
c)
Then, following public discussion in June 1985 as to possible
corporatization of airports the Airport Act 1987 was passed on 16
December 1987. Auckland International Airport Limited was
incorporated as a public company on 20 January 1988 and the Craigie
Trust and its other land was vested in it by the Auckland Airport
(Vesting) Order 1988 (SR1988/71) from 29 March 1988. The land
was vested “together with all planning rights, designations, water
rights and clean air licences, relating to it or to the operations and
activities of the airport”.
Questions for resolution
[29]
Rendered down to their essence, the questions for resolution in this case are:
(a) Does s 40 of the 1981 Act apply to the airport company or, as it
would have it, does it hold its land pursuant to the 1944 Act, the
Land Act 1948 and the Reserves Act 1977?
11

(b) If the answer to (a) is that s 40 of the 1981 Act applies to the
airport company, does it still hold the Craigie Trust land for “any
public work” and is the land “no longer required for that public
work” (nor for any other public work nor for exchange) or is it
required for another public work?  Resolution of that question
involves deciding whether the Craigie Trust land was and is held
for a “public work” either of an “aerodrome” or an “airport”
which necessarily involves deciding what is comprised in either at
1 February 1982 when the 1981 Act came into force (or within a
reasonable time thereafter), or at 29 March 1988 when the Vesting
Order was made or as at the present time?
(c)  If the Craigie Trust is not held for a “public work” would it be
impracticable, unreasonable or unfair to require the airport
company to offer it back to the plaintiffs?
(d) If the Craigie Trust land is not held for a “public work”, has there
been a “significant change in the character of the land for the
purposes of or in connection with the public work for which it was
held” and thus the airport company is not obliged to offer it back
to the plaintiffs?
Does s 40 of the 1981 Act apply to the airport company or, as it would have it,
does it hold its land pursuant to the Finance (No.3) Act 1944, the Land Act 1948
and the Reserves Act 1977?
(1)
Statutory Definitions
[30]
Unsurprisingly, the 1928 Act did not define “aerodrome” or “airport”.
[31]
The Civil Aviation Act 1964 – in force when the Craigie Trust land was
taken – defined “aerodrome” as:
“Aerodrome” means any defined area of land or water intended or designed
to be used either wholly or partly for the landing, departure, movement, and
servicing of aircraft;  and includes any buildings, installations, and
equipment on or adjacent to any such area used in connection with the
aerodrome or its administration:
12

[32]
Interestingly, the Authorities Act – passed only two years later - contains no
definition of “aerodrome” but defines “airport” as:
“Airport” means any defined area of land or water intended or designed to be
used either wholly or partly for the landing, departure, movement, or
servicing of aircraft; and includes any other area declared by the Minister to
be part of the airport; and also includes any buildings, installations, and
equipment on or adjacent to any such area used in connection with the
airport or its administration.
[33]
The 1981 Act contains no definition of “airport” but repeats the definition of
“aerodrome” from the Civil Aviation Act 1964 and adds:
And also includes any defined air space required for the safe operation of
aircraft using the aerodrome; and also includes a military airfield.
[34]
The Civil Aviation Act 1990 contains no definition of “airport” and repeats
the 1964 definition of “aerodrome”, though dividing it at the semi-colon into sub-
paragraphs.
[35]
Section 3 of the Authorities Act empowers airport authorities to establish and
carry on airports. That was amended by the Airport Authorities Amendment Act
1986 to define an “airport company” and, of relevance to this claim, with effect from
18 December 1986 enacted s 3D of the Authorities Act which, in the form current
from 1991, reads:
3D.
An airport operated or managed by an airport authority which is not
a local authority shall – …
(b)
For the purposes of the Public Works Act 1981, be deemed
to be a Government work.
[36]
For completeness, it needs to be noted that the Airport Act simply defines
“airport” as the “Auckland International Airport at Mangere … being an area of
approximately 1100ha which includes a runway, an international terminal and a
domestic terminal and other buildings, installations and facilities” but, of present
relevance, s 7(4A), in force since 10 August 1992 (Civil Aviation Amendment Act
1992 s 1(2)) reads:
(4A)
Where land has been transferred to the company under this Act,
sections 40 and 41 of the Public Works 1981 shall, after that transfer, apply
13

to the land as if the company were the Crown and the land had not been
transferred under this Act.
(2)
Joint Venture Airports
[37]
For many years prior to corporatization Government policy was that
New Zealand airports be owned and operated as joint ventures between Government
and local bodies. Auckland International was one. A Civil Aviation administration
manual on “Principles and Procedures” for such airports published on 1 August
1961 described what was envisaged:
3.
World-wide acceptance of the inevitability of subsidised initial
development costs for air transport acknowledges that potential air
traffic and ancillary airport revenues should increasingly contribute
towards recouping past costs and meeting those of future
development, the main aim being the development of a satisfactory
aviation service capable, in time, of meeting the justifying present
capital expenditure. The “user who pays” and the community are
entitled to the assurance that effective promotion and commercial
development, associated with efficient maintenance and operation,
will show some prospects of airports eventually becoming self-
supporting if not self-liquidating. Both the aeronautical user and the
airport management should have a common interest in the
development of non-flight airport revenue sources. In this
endeavour, rents and charges to non-aeronautical users should seek
the maximum returns from consumer business and commercial and
industrial tenants.
…
6.
It must be recognised that airport “operations” (the movement of air
traffic) have a corollary in airport “commerce”, demanding prompt
appraisal and decision on local business opportunities and
promotion. This broad division of the airport into two major
components materially assisted the development of airport policy
within the concept now accepted in New Zealand.
[38]
The same document broadly placed responsibility for the operation of joint
venture airports on the Crown and the management of the airport and ancillary
facilities on the local body.
[39]
Since New Zealand is a party, that policy was required to mesh with the 1944
Convention on International Civil Aviation which was said by Mr Garfinkle, an
international aviation consultant, to define “aerodrome” in Annex 14 as:
14

A defined area on land or water (including any buildings, installations and
equipment, intended to be used either wholly or in part for the arrival,
departure and surface movement of aircraft.
[40]
It was the implementation of those policies in Auckland which led to the
establishment deeds.
[41]
The policy largely remained in place until the corporatization and divestment
of assets wholly or partly in public ownership which occurred in New Zealand in the
mid to late 1980s.
(3)
Submissions and Authorities
[42]
For the plaintiffs, Mr Carruthers QC said the basic thrust of the claim was
that the Crown and the ARA were bound by the 1981 Act to have offered the Craig
Trust land back to the plaintiffs on 1 February 1982 or within a reasonable time, 18-
24 months thereafter, as it was no longer held for an “aerodrome”, the public work
for which it was taken. And the airport company inherited that obligation when the
land was vested in it pursuant to the Vesting Order with the obligation being to offer
the land back as at its date or shortly thereafter.
[43]
Summarising the history, Mr Carruthers accepted Auckland International was
developed as a joint venture under the establishment deeds which made clear airport
land was under the “management and control of the Council for such time as it is
used for … airport and ancillary aviation purposes”. He detailed the Crown’s
acquisition of the Craig Trust land earlier set out noting it was consistently taken for
an “aerodrome” or similar.
[44]
As earlier noted, he submitted the setting aside of the land as a reserve under
the Land Act and vesting it under the current Reserves Act was standard at the time.
He submitted that the plaintiffs’ rights endured through the airport privatization and
corporatization process.
[45]
Whichever route was adopted, he suggested that applying the 1981 Act to
compulsory acquisition of land now held for commercial purposes by a commercial
15

entity such as the airport company is entirely consistent with the policy of the 1981
Act described in Deane v Attorney-General [1997] 2 NZLR 180, 191:
It is convenient to set out here what I apprehend to be the appropriate
approach to s 40, and buy-back offers in particular. The power of the Crown
to compulsorily acquire land derives from the ancient notion of eminent
domain. It is today a draconian – but necessary power – in a complex, and
collective society. But to the extent that the Crown's powers are a direct
interference with individual property rights, our Courts – in company with
Courts elsewhere in the British Commonwealth – have insisted that, always
bearing in mind the purpose of any given powers (Chilton v Telford
Development Corporation [1987] 1 WLR 872, at p 878 per Purchas LJ),
powers of this kind are strictly construed; must be exercised in good faith
(Manukau City v Attorney-General ex relatione Burns [1973] 1 NZLR 25
(CA), at p 32); and even-handedly. That last consideration has (with respect)
never been better expressed than by Lord Upjohn (as he later became) in
delivering a judgment of the Court of Appeal in Simpsons Motor Sales
(London) Ltd v Hendon Corporation [1963] Ch 57, at pp 82 – 83:
"The underlying assumption of Parliament is that in conferring compulsory
powers upon statutory authorities for public purposes, the acquiring
authority will act reasonably in the public interest, that is, not only in the
interests of their own ratepayers or shareholders, as the case may be, but
with due regard to the interests of the person being dispossessed."
(Emphasis added)
(As Mr Carruthers said, the decision in Deane was reversed by the Court of Appeal -
Horton v Attorney-General CA 43/97, 3 December 1997 - and that reversal was
upheld by the Privy Council - Attorney-General v Horton [1999] 2 NZLR 257 - but
neither judgment commented adversely on the passage cited.)
[46]
Mr Carruthers submitted the land remained held for a “public work” because
the defendant operated an “aerodrome”. But the Craigie Trust land was not
“required” to be used for that public work. However desirable the airport company
may regard its retention, its commercial use, both present and forecast, was
unnecessary for operation of an “airport”, still less an “aerodrome”, particularly
when the Airport Act expressly terminated the establishment deeds and thus made
the airport company’s land holding wholly subject to statute. It was impermissible,
he submitted, to hold the land on a “just in case” basis for future development,
noting Mr Garfinkle’s evidence later detailed that such an approach could easily
mean no compulsorily acquired land would ever need to be offered back. Not only
was such an approach contrary to the anti-land banking principles for which s 40 of
the 1981 Act was, at least in part, enacted, it was also contrary to the observations of
16

the Privy Council in Horton (at 261-262) where their Lordships said of the nature of
the offer back right:
This right has sometimes been described as a right of pre-emption, although
Their Lordships think it bears a closer resemblance to an option: the
purchaser's right is not dependent upon the vendor choosing to sell but arises
as soon as the land is no longer required. Hammond J described it as an
inchoate right which an owner of land taken by the Crown preserved
throughout the latter's ownership and which came to fruition when the land
was no longer required. It has been said in a number of cases to be the
expression of a strong legislative policy to preserve the rights of an owner
subject only to the continuing needs of the state.
Nevertheless, as a right in private law analogous to an option, it has some
curious features. It is subject to defeasance by the exercise of the
discretionary power conferred by s 40(2)(a). Furthermore, the existence of
the right may well remain unknown to the owner for some considerable time.
Since a decision that land is no longer required will usually be internal to the
government department or state-owned enterprise, the owner may learn only
much later, by use of the Official Information Act 1982 or accidental
discovery, that his right to buy had accrued. By the time he claims to
exercise it, policy may have changed and the land be once more required for
public use. Subject to the question of reconsideration, the Crown would have
to use its compulsory powers afresh and purchase at the later valuation. This
may of course be a necessary consequence of the legislative policy of
protecting the original owners.
…
The Court of Appeal … said that once conditions (a) and (b) and possibly
(c) of s 40(1) were satisfied, the Chief Executive of the Lands Department
came under a mandatory obligation to sell. There was ``no further role for
the department or agency responsible for the public work for which the land
was held'' and ``no room for reconsideration of the earlier conclusion that the
land was not required for a public work.'' The right to an offer vests, subject
only to being defeated by the exercise of the discretion conferred by s
40(2)(a) or by the state of facts described in s 40(2)(b). There is no provision
for the right being divested simply by a change of mind on the part of the
government department or state-owned enterprise.
Their Lordships respectfully consider that the reasoning of the Court of
Appeal is correct. If s 40 confers an enforceable right to buy, then Their
Lordships consider that when the conditions upon which it comes into
existence have been satisfied, it must vest subject only to those grounds of
defeasibility expressly stated in the statute
[47]
Mr Carruthers submitted it was incorrect for the airport company to focus
more on whether the land was subject to the 1928 Act prior to transfer than whether
it was subject to the 1981 Act. He submitted the wording of s 40 makes 1 February
1982 and thereafter the critical period, not what occurred before that date. He
17

pointed to the breadth of the terms of s 40 and the lack of reference in it to land held
under the 1928 or other Acts.
[48]
Mr Carruthers also argued that s 40 of the 1981 Act is not primarily
concerned with the disposal of land: its prime focus is whether land held for a public
work continues to be required for such. If land has been held by a public body, or a
series of public bodies, for a continuous public work purpose, then s 40 applies.
[49]
Even were that wrong, Mr Carruthers submitted there was a consistency of
public work purposes demonstrated by the “Gazette” notices in their repetition of
“aerodrome” with only minor variation. He submitted the words “in any other
manner for any public work” in s 40 also focused attention not so much on the way
in which the body holding the land acquired it, but whether the various public
entities which had held the land did so for a public work purpose relying on Port
Gisborne Ltd v Smiler [1999] 2 NZLR 695, 706. There the Court of Appeal, in
construing s 40 in relation to land which had passed from original Maori owners to
the Crown and then to Port Gisborne and its antecedents, held:
[39] … We agree that in appropriate circumstances there is justification for
disregarding intervening public owners so as to give effect to the intent of
the legislation and return the land to its original private owners. As
Laurenson J said, that depends on the factual and legal nexus surrounding
the acquisition of the land and the manner of its holding by the intermediate
public owner. In Auckland Regional Council v Attorney-General [HC AK
CP.583/88 24 September 1990] Gault J commented at p 10:
“A construction excluding [as offerees] former owners that held the land for
a public work would seem consistent with the intention of the section of
providing a prior right to a private person to reacquire land taken or
acquired from him for public use.”
[40] Where land has continued to be held by successive public bodies for a
public work throughout, the true intent and spirit of s 40 is that the land
should be returned to the original owner. The intent of the section cannot,
however, extend to bypassing an intervening public owner where that owner
neither acquired nor held the land for a public work. In the situation that the
land was held throughout for a public work, there is merely a preservation of
rights that the original owner would have enjoyed under s 40 had there not
been a change of public owner. Where, however, the land was acquired and
held by the first public owner for something other than a public work, there
are no rights to preserve and it is not possible, given the wording of subs (2),
to find that those rights accrue when ownership changes.
18

[41] What has been described as the inchoate right given by subs (2), arises
and can only arise at the time when the land first becomes subject to the
possible application of s 40, crystallising if and when the land is no longer
required. A change of ownership while a public work purpose for holding
the land continues does not affect the inchoate right, and there is no
justification for reading the section as bringing it to an end. The land remains
required for a public work, and s 40 does not come into play. Subsection (2)
does not stipulate the offeree as being the person from whom the present
holder of the land acquired it.
[50]
Section 40 applies if the land is not needed for a public work or is no longer
so needed (Kerr-Taylor v Attorney-General [2004] 3 NZLR 104, 114).
Mr Carruthers submitted the airport company was unable to demonstrate it had a
need or “required” the Craigie Trust land (apart from the Trust’s concessions later
outlined) for a public work. The question was whether the particular piece of land
had been shown to have been acquired or held for a specific public work (Hood v
Attorney-General CA 16/04 2 March 2005, para [27]).  The airport company could
not show that the commercial uses to which the Craigie Trust land has been, and is
forecast to be, put were “required” to be on the Craigie Trust land.
[51]
One of the purposes of the enactment of s 40 was to prevent public bodies
continuing to hold land acquired for public works purposes with no specific public
work purpose in view and with the land simply held as a “land bank” (Bennett pp 19-
20, para [43]). Even brief intervals of land not being required for public work
purposes between it being required for such purposes trigger the offer back
obligation (Horton at 257, 262 (PC)).
[52]
Mr Carruthers submitted the Airport Company’s approach was erroneous in
suggesting its land was not subject to s 40 because it had been taken for a public
work, an “aerodrome”, under the 1928 Act then declared Crown land held as a
reserve under the 1944 Act and the establishment deeds. The land had never been
disposed of under s 35 of the 1928 Act nor disposed of under cl 21 of the initial
establishment deed.  In any event, the point became moot when the trust and deeds
were dissolved by the Airport Act with the land thereafter to be dealt with under s
7(4A).
[53]
Mr Carruthers argued s 31 of the 1944 Act permitted the acquisition of both
public and general works under the 1928 Act.  He noted s 28 of that Act provided
19

that Part IV (which included s 31) was deemed to be part of the 1928 Act.
Mr Carruthers also noted s 31 dealt with acquisitions not disposals and accordingly,
he submitted, s 35 of the 1928 Act continued to apply in that latter regard. The
“Gazette” notices of 1974, 1975 and 1977 taking the land were all expressed to be
pursuant to the 1928 Act. Accordingly, he submitted, the Craigie Trust land was
acquired for a “public work” even though the notices do not use that term and,
throughout, the Crown and the ARA regarded the Craigie Trust land as held for a
public work.
[54]
Mr Carruthers also argued there was no statutory or other basis for AIAL’s
contention that once the Craigie Trust land had been set aside as “reserves for local
purpose (aerodrome)” and vested in the ARA, it could no longer be land held for a
“Government work” or “local work” under the 1928 Act or a “public work” under
the 1981 Act. There was no reason, he submitted, why the land could not be held on
trust as a reserve under the establishment deeds and also held under the 1928 and
1981 Acts. Such would conform with s 3D of the Authorities Act.
[55]
There was no basis, Mr Carruthers submitted, for the defendant’s contention
that Crown land cannot be held for a public work without some formal step altering
its legal status. Section 13 of the 1928 Act and s 52 of the 1981 Act do no more than
create powers to set land aside as Crown land or for Government works. The
decisive provision, Mr Carruthers submitted, is s 167 of the Land Act 1948 which
reads:
167
Land may be set apart as reserves
(1) The Minister of Conservation may from time to time, with the prior
consent in writing of the Minister of Lands, by notice in the Gazette,
set apart as a reserve any Crown land for any purpose which in his
or her opinion is desirable in the public interest. Every such notice
shall take effect from the date thereof or from such later date as is
specified in the notice.
…
(2) Upon the notice aforesaid being published in the Gazette, the land
described therein shall be and be deemed to be dedicated to the
purpose for which it was reserved, and may at any time thereafter be
granted for that purpose in fee-simple, subject to the condition that it
shall be held in Trust for that purpose unless and until that purpose
is lawfully changed.
20

[56]
The procedure in s 167 applied in this case, he suggested. The Minister had
set apart Crown land as a reserve for a public interest purpose, an “aerodrome”, and
upon the “Gazette” notice being published the land was deemed set aside for that
reserves purpose and was then vested in the ARA on trust for the same purpose. But
s 167(4) makes clear the land was subject to the 1981 Act. It reads:
(4) Where any Crown land is set apart as a reserve under this section for
any public purpose which is a Government work within the meaning
of the Public Works Act 1981, the land so set apart shall be deemed
to be subject to that Act, save that section 35 of that Act, other than
the second and third provisos to that section, shall have no
application thereto.
(the 1981 Act substituted the reference to it for reference to the 1928 Act)
[57]
“Government work” is defined in the 1981 Act as:
Government work means a work or an intended work that is to be
constructed, undertaken, established, managed, operated, or maintained by or
under the control of the Crown or any Minister of the Crown for any public
purpose; …
[58]
The Craigie Trust argued the Crown retained control over the land in terms of
the establishment deeds. The airport land was acquired for a “Government work”,
an “aerodrome”, and has continued to be held for such. Accordingly s 167(4) applies
and the land, including the Craigie Trust land, is subject to the 1981 Act. That, too,
conforms with s 3D of the Authorities Act and s 7(4A) of the Airport Act.
[59]
Mr Carruthers submitted the statutory régime by which the airport company
was established and the land vested was a code. Section 7(4) of the Airport Act
vested the land notwithstanding the 1981 Act with the reach of the latter being
clarified by the enactment of s 7(4A). That clearly made the land vested in AIAL
under the Vesting Order subject to s 40 “as if” it were the Crown and with the final
phrase - “and the land had not been transferred under this Act” – intended to avoid
the transfer or vesting triggering s 40 rights (Dilworth Trust Board v Counties
Manukau Health Ltd [2002] 1 NZLR 433, 448, paras [31] and [32], Horton CA43/97
p 8). In Horton, in relation to similar words found in s 24(4) of the State-Owned
Enterprises Act 1986, the Court of Appeal observed:
21

If the grant or other transaction is not a “transfer” of land to the SOE then
s 24(4) has no application and s 40 continues to apply to the Crown. If the
grant or transaction is a “transfer”, then in terms of s 24(4), thereafter s 40
applies to the grant as if the SOE were the Crown and the land had not been
transferred pursuant to the State-Owned Enterprises Act.
And in the unreported portion of Deane, Hammond J observed (at 42) that
“Parliament did not intend that the Public Works Act rights of former owners should
be diminished in the course of privatisation”.
[60]
Mr Carruthers submitted that if the defendant’s construction of s 7(4A) were
adopted – that the position prior to vesting of the land in AIAL was the trigger point
– the unintended result would be that s 40 applied from 1 February 1982 and AIAL
would then be responsible for offering back the land as at a date, 1 February 1982 or
up to 18-24 months later, when it had not then been incorporated – indeed
corporatization was not then being considered – and the land had not been vested in
it. That, Mr Carruthers said, was an absurd result which could never have been in
Parliament’s contemplation.
[61]
The Craigie Trust’s interpretation accorded with the plain words of s 7(4A)
and with s 3D of the Authorities Act deeming an “airport” to be a Government work
for the purposes of the 1981 Act. AIAL was deemed to be an “airport company”
under s 4(6) of the Airport Act and therefore an “airport authority” under s 2 of the
Authorities Act 1966.
[62]
By contrast with s 7(4A), some similar statutory provisions enacted at much
the same time and for much the same purpose expressly applied their provisions only
to land subject to s 40 of the 1981 Act (e.g. Health Sector (Transfers) Act 1993,
s 11F cl 3 of the First Schedule).
[63]
Auckland City Council v Man O’ War Station [1996] 3 NZLR 460 on which
the defendant relied was distinguishable on its facts since in that case the land had
ceased to be held for the Government work for which it was acquired and was not
used for a different Government work. Accordingly s 167(4) was inapplicable.
22

[64]
To conclude, Mr Carruthers relied on the following passage from Port
Gisborne:
[35]
Section 40, which comes under Part III of the Act and is headed
“Dealing With Land Held for Public Works”, is in the context of
legislation which is directed to public works, and in particular to the
acquisition of land for public works (s 16). It is not, and has no
reason to be, concerned with land which has been acquired for other
purposes. …  The Act clearly has no application to land which has
been acquired, and is currently being used, for purposes other than
public work. … The background to the offer-back concept is that
land is being acquired from a private person for a public work
purpose, possibly under the threat or contemplation of compulsion.
The rationale must be that it is only fair, if that purpose disappears,
the land should so far as practicable revert to the previous or
equivalent private ownership.
[36]
In the light of that background, it would appear contrary to the
statutory intention to apply s 40 to land which has been acquired for
other than public work purposes. What justification could there be
for requiring an offer back to be made where land has been acquired
for a commercial purpose on an arm’s length transaction, but years
later used for a short term for some form of public work but is then
no longer required for that work? At the time of acquisition, the
vendor has no existing right which needs preservation.  … The
framework, and the history, of the legislation all point to s 40(2)
being directed to land which has been acquired for a public work,
and to give an option to the person from whom it was so acquired.
The fact that the present owner of the land was not the particular
body which originally acquired the land for that purpose is irrelevant
where a public work use has continued, with the need for any offer
back not arising.
[65]
For the airport company, Mr Galbraith QC, its senior counsel, submitted the
defendant was not statutorily bound to offer the Craigie Trust land back to the
plaintiffs.   The airport company was not bound by the 1981 Act upon proper
analysis being undertaken of the various statutes and deeds affecting the airport.
[66]
Summarizing AIAL’s stance, he said the present airport was a joint venture
under the establishment deeds with their statutory basis in s 31 of the 1944 Act. The
land having been transferred to the ARA to be held on trust under the Reserves and
Domains Act 1953 for the joint venture meant it was that Act and its successor, the
Reserves Act 1977, which, together with the establishment deeds, governed the
status of the airport land. It was thus not subject to the 1981 Act.
23

[67]
He submitted that whether s 40 applied to the defendant was a construction
exercise to be determined against the factual and legal matrix with views on that
topic offered by various persons at various times of little assistance. That must be
correct. The 1981 Act applies or it does not. Views expressed outside this case on
that topic by consultants, lawyers and others are of little, if any, assistance.
[68]
The statutory foundation for joint venture airports was s 31 of the 1944 Act,
probably passed to enable hydro-electric and other major public works to proceed.
Within the statutory guidelines, s 31 gave wide powers to the Crown and local
authorities to agree on development of works of local and national importance, even
if they did not qualify as a “public work” under the 1928 Act. That, Mr Galbraith
submitted, was demonstrated by s 31(3) enabling land to be acquired “as for a public
work”.
[69]
Similar powers of entering into agreements most suited to the circumstances
appeared in s 12(3) of the Civil Aviation Act 1964 with permissible categories of
such agreements particularised and subs (6) providing that agreements for the
“development or reconstruction of an aerodrome” under s 31 of the 1944 Act might
include such provisions.
[70]
Mr Galbraith noted the provisions concerning land in the principal deed
included the Ministerial obligation to acquire the land scheduled, including the
Craigie Trust land, and provided that s 31 of the 1944 Act should apply to such.
[71]
Mr Galbraith submitted that the land was initially acquired for a
“Government work” or a “public work” and essentially continues to be held for such
purposes.
[72]
The 1975 “Gazette” notice declared all the airport land to be “taken for an
aerodrome” under s 32 of the 1928 Act which meant it was held “as for a public
work” under s 31 of the 1944 Act. All the airport land was then declared to be
Crown land under s 35 of the 1928 Act pursuant to the 1977 “Gazette” notice.
24

[73]
The next step in Mr Galbraith’s submissions was that, from as early as the
supplementary deed of 14 April 1966, all the airport land was vested in the ARA and
held “in trust for aerodrome purposes” for the purposes of the principal deed under s
19 of the Reserves and Domains Act 1953. Section 19 empowered the Minister by
“Gazette” notice to vest land in local authorities on trust “for the particular purpose
for which the public reserve is reserved or set apart”. Then s 5(2)(b) of the Reserves
Act 1977 specifically provides that the Act is to be read subject to the “provisions of
any … deed or other instrument creating the Trusts upon which the reserve is held”.
[74]
Then, by the 1980 and 1982 “Gazette” notices the airport land was re-
classified under the Reserves Act 1977 as a “reserve for local purpose site for
aerodrome” subject to the Act.
[75]
The result, Mr Galbraith submitted, was that from at least the 1978 “Gazette”
notice until corporatization in 1988, all the airport land was held as a local purpose
reserve “aerodrome” or “site for aerodrome” and held in trust by the ARA for that
purpose subject to the establishment deeds with those deeds having primacy over the
provisions of the Reserves Act 1977 by dint of s 5(2)(b) of that Act, and s 40 which
obliged bodies administering reserves to do so “to ensure the use … development,
maintenance, protection and preservation … of the reserve for the purpose for which
it is classified”. Accordingly, the 1981 Act did not apply to any part of the airport
land including the Craigie Trust land.
[76]
A variant leading to the conclusion that all the airport land was outside the
provisions of both the 1928 and 1981 Acts was that, under the Land Act 1948, it was
that Act which thereafter governed the Crown’s obligations. The land was held in
trust for the joint venture for the purposes set out in the establishment deeds and
subject to the requirements of the Land Act 1948 and, since 1977, of the Reserves
Act.
[77]
He supported that submission by reference to observations to that effect in a
Land Information New Zealand discussion paper “Review of the Public Works Act:
Issues and Options” (November 2000, p 41, para 5.4.2) and another LINZ
publication, “Statutory Right of Repurchase” (1 July 2002, s 12, p 17), which said
25

“Crown land held under the Land Act 1948 is not land ‘held for public work’ [and]
the statutory offer requirements of s 40 of the PW Act do not apply”. He also
submitted because all the airport land was disposed of by the Crown as required by
the 1928 Act by vesting it in itself under the Land Act 1948, well before enactment
of the 1981 Act, the Crown owed no obligation to offer the land back to previous
owners once the 1981 Act came into force as enactment of s 40 of that statute did not
create new rights for those whose former land was no longer held under the 1928 Act
despite the contrary observations in Bennett (p 33, para [88]).
[78]
Mr Galbraith submitted the plaintiffs were in error in suggesting the
mechanism just described was a stratagem utilised at the time to avoid offering the
land to neighbouring owners under s 35 of the 1928 Act and because that Act
contained no equivalent to s 50 of the 1981 Act allowing transfers between public
bodies without triggering the offer back requirement. The 1928 Act included a
provision comparable with s 50: s 35 of the Finance (No.2) Act 1945 made such
transfers subject to s 31 of the 1944 Act.
[79]
In light of that, Mr Galbraith submitted it must be concluded that the method
chosen to vest the airport land in the ARA was a deliberate one, not one to
circumvent the 1928 Act.
[80]
Mr Galbraith submitted that airport company’s approach was recognised by
the Authorities Act. He noted s 2 largely repeats the earlier definitions of
“aerodrome” in its definition of “airport” but adds “any other area declared by the
Minister to be part of the airport”. He also relied on s 5 which effectively repeats
s 31(1)(2) of the 1944 Act and subs (3) which from 1988 read:
(3)
Where in the opinion of the Minister of Finance and the Minister any
work or scheme of development or reconstruction to be executed or carried
out at or in connection with any airport in accordance with an agreement
entered into under this section is of both national and local importance, that
agreement shall be deemed to be an agreement entered into under section
224 of the Public Works Act 1981, and the provisions of that section, as far
as they are applicable and with the necessary modifications, shall apply
accordingly.
(The reference to s 224 of the 1981 Act was originally a reference to s 31 of the 1944
Act).
26

[81]
In response to the Craigie Trust’s reliance on s 3D of the Authorities Act to
argue the 1981 Act applies, Mr Galbraith noted the section only came into force on
18 December 1986, some years after the claimed offer back obligation became
operative.
[82]
Mr Galbraith submitted s 3D did not affect the airport company or its land
because it was not held under the 1981 Act and the section was not intended to create
rights retrospectively.  Even were that submission not accepted, he submitted it did
not follow the Craigie Trust land was held as an “aerodrome” as defined in the 1981
Act.  It would either have been held for the purposes of an international airport under
the joint venture and the establishing deeds, though as a “public work”, or s 3D
would only apply to that part of the airport land which fell within the narrow
definition of “aerodrome” for which the plaintiffs contend.
[83]
Further, he submitted, that if the Craigie Trust’s interpretation of s 3D were
accepted, the consequence would be that any airport corporatized after that provision
was enacted in 1986 would have to offer back all land, however acquired, that was
not being used for the plaintiffs’ narrow interpretation of an “aerodrome” or
“airport”, a nonsensical result. Section 3D could only apply to land which comes
within the narrow definitions of “aerodrome” in the 1981 Act and “airport” in the
Authorities Act, not the whole of the airport company’s land, and s 7(4A) of the
Airport Act simply preserved, from 1992, any Crown obligation which the airport
company may have inherited.
[84]
Mr Galbraith also relied on the whole of the Airport Act. He especially relied
on its definition of “airport”, one markedly different from other definitions of the
term, or “aerodrome”.  After empowering the vesting of each “asset” as defined in
the State-Owned Enterprises Act 1986 and liability in the company, s 7 (4) reads:
(4)
Any provisions of this Act vesting any assets or liabilities in the
company shall have effect notwithstanding  any enactment, rule of
law or agreement and, in particular, but without limitation, the
provisions of this Act vesting any land in the company shall have
effect notwithstanding any provision contained in the Land Act
1948, the Reserves Act 1977, or the Public Works Act 1981 or in
any other Act relating to land.
27

[85]
Mr Galbraith noted that provisions similar to s 7(4A) were inserted into the
Authorities Act (s 3A(6A)) and the Wellington Airport Act 1990 (s 8(4A)) and in a
number of other statutes facilitating corporatization of State-Owned Enterprises.
However, although the legal effect of those provisions had been considered by the
Courts on a number of occasions, including cases under the 1981 Act, none have
held the subsection created a new offer back right where none previously existed.
Thus, he submitted, the effect of subs (4A) was simply to preserve, post-
corporatization, any offer back rights which formerly existed, not to create new
rights to that effect.
[86]
That position was confirmed in Jackson v Attorney-General (HC WN CP
149/95 30 June 1995) where an injunction was sought to prevent the transfer of
Paraparaumu airport to an airport company under the Authorities Act 1966. The
transfer was challenged on the basis that such a transfer would defeat the plaintiffs’
claimed offer back rights under s 40 of the 1981 Act. Sections 3A and 6A of the
Authorities Act provide that nothing in s 40 should apply to transfers of land to
airport companies but s 40 should continue to apply to the land “as if the airport
company were the Crown and the land had not been transferred”. The injunction
application was dismissed, Neazor J holding (at 7):
It is in my view perfectly clear that the plaintiffs’ interest in being able to
repurchase the land (if they are entitled to do so) is protected by that
subsection once the land is transferred, as is proposed to be, to the second
defendant. If the second defendant tries to dispose of it, or if in the hands of
the second defendant events occur which would trigger the entitlement under
s 40 if the land was still held by the Crown, the plaintiffs’ rights would be
unchanged. Whatever rights they have today they would have then;
whatever right they have today in respect of the valuation on the basis of
which the land would be offered for sale would be (in terms of legal
entitlement) the same, as it would continue to enure to them under the same
statutory terms. Whether in practical terms it would produce a different
result is in my view a consequence of law not of any statutory power of
decision.
[87]
Mr Galbraith submitted the passage from Deane as to the effect of s 24(4) of
the State-Owned Enterprises Act, was in fact authority supportive of the airport
company since, if s 7(4A) of the Airport Act had the meaning for which the plaintiffs
contend, it would apply to all the land vested in the airport company under the Act,
even land bought as a result of ordinary commercial negotiations.
28

[88]
In summary, he said the Craigie Trust had no offer back rights prior to s
7(4A) being enacted because the land had been transferred out of the Public Works
Act regime in 1977.
[89]
Finally, on this aspect of the case, Mr Galbraith submitted the land could not
be held concurrently both for a “local purpose reserve (site for aerodrome)” and a
public work when the 1981 Act came into force, relying on Man O’ War Station (at
464).
[90]
In that case an historic reserve at the eastern end of Waiheke Island had been
taken in about 1942 under the 1928 Act for defence purposes and in 1965 was
declared by a Minister as being taken for such purposes. In 1968 it was declared to
be Crown land subject to the Land Act 1948 and, in 1983, was set aside as an
historic reserve together with appurtenant easements. Negotiations between the
Crown and the owner to create public walkways in substitution for an access
easement led to claims the easement had become a “reserve” under the Reserves Act
1977 and revocation needed to accord with that Act, including rights of objection.
The owner submitted the easement was not “land” and accordingly the Reserves Act
did not apply and since the land had originally been taken under the 1928 Act for
defence purposes, it could not be a “reserve” under the Reserves Act 1977.
[91]
Holding the setting aside of an easement appurtenant to a reserve to be a
reservation of the land as a reserve, Anderson J held (at 464):
It was submitted that the "defence purposes" for which the land was taken
under the Public Works Act 1928, as declared in the Gazette notice of
4 November 1965, is a purpose which is not specified in para (i) which
specifies purposes of a reserve, recreation ground, pleasure ground,
agricultural show ground, or tourist and health resort. If the quality or nature
of the Stony Batter reserve had not changed since 4 November 1965 this
submission would have prevailed. However, as the earlier part of this
judgment records, the Stony Batter land became Crown land on 4 March
1968 and subsequently, by virtue of the December 1983 ministerial decision,
it became land set aside as a historic reserve. It surely could not have been
the legislative intention to preclude in perpetuity from the Reserves Act land
which at any time in the past had been acquired under a Public Works Act
notwithstanding that such land may later have been translated into Crown
land with a different purpose or even private land, and had subsequently
been purchased and set apart with the intention of creating a reserve. Reason
and the provisions of s 5(j) of the Acts Interpretation Act 1924 compel me to
find that the participial connotation in s 2(1) of the Reserves Act is current
29

status, not superseded historical dealings. I therefore reject the submission
that the Stony Batter historic reserve is excluded from the definition of
"reserve" in the Reserves Act 1977 by virtue of s 2(1)(j).
I also cannot accept the submission that the land is excluded by virtue of
s 2(1)(k). That paragraph excludes any land to which s 167(4) of the Land
Act 1948 applies. Section 167(4) of the Land Act 1948 refers to Crown land
set apart as a reserve under s 167 "for any public purpose which is a
government work within the meaning of the Public Works Act 1981". The
Stony Batter historic reserve was plainly not set apart for a public purpose
which is a government work within the meaning of the Public Works Act. It
is land which in 1983 was set apart as a historic reserve, this being a purpose
clearly within the scope of s 167(1) of the Land Act 1948 which authorises
the Minister to set apart land for any purpose which in the Minister's opinion
is desirable in the public interest. In terms of s 2(2) of the Reserves Act 1977
the particular setting apart was a setting apart for the use, benefit and
enjoyment of the people of New Zealand and the inhabitants of the district
and locality and was therefore a setting apart for a public purpose, but it was
plainly not a setting apart for a "Government work", which means "a work
constructed or intended to be constructed by or under the control of" the
Crown. Even if the original acquisition in 1965 or earlier, pursuant to the
Public Works Act 1928, had been for an intended "Government work" the
later ministerial decisions which have been recorded in this decision were
concerned with the creation of a historic reserve and not with the
performance of a government work. Accordingly the Spencer defendants'
first main argument fails.
[92]
A similar conclusion was reached on the status of Narrow Neck in
The Tamaki Reserve Protection Trust Inc v Minister of Conservation (HC AKL CP
600/97 M 1915/97 12 March 1997, p 18-19) where, citing the above passage from
Man O’War Station, Anderson J held:
As mentioned earlier in this judgment, a Departmental memorandum of
2 September 1886 suggested that only about five acres of the 28 were to be
retained and the balance was to be sold. Counsel for the North Shore City
Council submits that the mixed purposes means that the land was not
acquired for public works. I think, however, that the whole was required
even if not acquired for public works. Requirement is the criterion under
s 22 of the Public Works Act 1882. I accept for the purposes of this
proceeding that the whole of the land was acquired under a Public Works
Act as the defendants submit. This does not mean, however, that the land is
excluded from the definition of “public reserve” in the Reserves and
Domains Acts of 1953 and 1928.
[93]
On the basis of those decisions, Mr Galbraith submitted that if the ARA were
found not to have been using its land for aerodrome purposes when the 1981 Act
came into force, remedies for the breach of trust its actions would constitute would
be those in the Reserves Act 1977, not those under the 1981 Act.
30

(4)
Discussion and Decision
[94]
The first aspect of resolving the question with which this part of the judgment
is concerned is deciding whether the Craigie Trust land was, on 1 February 1982,
“held under this or any other Act or in any other manner for any public work” or
whether the 1981 Act applies to the airport company and its land at all, having regard
to the history both before and since 1 February 1982 so carefully detailed by
Mr Galbraith.
[95]
Section 40 makes the question whether the Craigie Trust land was “held
under this or any other Act or in any other manner for any public work” the pivotal
question. The reference to “any other Act” makes clear that, irrespective of the Act
under which land is held, the focus is on whether it is held for a public work.
[96]
Initially “public work” was defined as:
“Public work” and “work” mean every work which the Crown or any local
authority is authorised to construct, undertake, establish, operate, or
maintain, and every use of land which the Crown or any local authority is
authorised to establish and continue, by or under this or any other Act; and
includes any thing required directly or indirectly for any such work or use:
but, from 31 March 1987 4, “public work” was re-defined to mean :
“ ‘Public work’ and ‘work’ mean –
(a) Every Government work or local work that the Crown or any
local authority is authorised to construct, undertake, establish,
manage, operate, or maintain, and every use of land for any
Government work or local work which the Crown or any local
authority is authorised to construct, undertake, establish,
manage, operate, or maintain by or under this or any other Act;
and include anything required directly or indirectly for any such
Government work or local work or use:
[97]
There can be no doubt that the airport land, including the Craigie Trust land,
was a “public work” both at 1 February 1982 and since 31 March 1987 being a
“work” which the Crown, the ARA and the various local authorities were authorised

4 See footnote [3].
31

to “construct, undertake, establish, manage, operate or maintain”. That is supported
by the fact that the definition of “aerodrome” in the 1981 Act clearly fits within the
definition of “public work” in the same statute.
[98]
The 1981 Act was passed, at least in part, to curb “land banking” by the
Crown and local authorities under the 1928 Act. In the 1981 Parliamentary debates
on the Public Works Bill (e.g. 440 NZPD 3165, 3180) the measure was also said to
enhance the position of former property owners.  Both the then Minister of Works
and Development and the former Minister summarized what is now s 40 without
qualification (440 NZPD 3165, 3167).  The Minister also spoke (440 NZPD 3181)
of:
“… the special protection that is being given to a person whose property is
taken compulsorily and who then finds that the land is not required for the
purpose for which it was taken. Under the Bill such landowners will have
the chance to get their land back, which is something that has not happened
before …”
[99]
As noted in Bennett (paras [37] and [43]) Parliament appears to have felt
there had perhaps been a too ready resort to the expropriatory powers vested in the
Crown and local authorities by s 35 of the 1928 Act, coupled with the inherent
unfairness that, once land expropriated for a public work purpose was no longer
required for such purpose, owners and their descendants had no means of regaining it
– but might see their neighbours given that opportunity.
[100]  It is a singular facet of the phrasing of s 40 that it contains no suggestion it
did not apply to all land held for public works immediately the 1981 Act came into
force. It contains no exceptions and no qualifications. It exempts from its reach no
land then held for a public work. It specifically includes, rather than excludes as
AIAL would wish, land held under “any other Act … for any public work”.  Given
Parliament’s intent to remedy what it saw as deficiencies and unfairness in the way
the 1928 Act had operated, were significant items of infrastructure – such as
Auckland International airport – then held for public works to be entirely exempt
from its ambit, it is highly improbable no mention would have been made of that
very significant exception during the Bill’s passage through Parliament.  As the
Minister’s speech made plain, former landowners were to “have the chance to get
32

their land back … something that has not happened before”. All of that is
particularly notable when it must be the case that numerous parcels of land
throughout the country taken for public works had been divested by the Crown
through the Land Act/Reserves Act stratagem or otherwise. If the defendant’s
contention is correct, they were thereby to be wholly beyond the 1981 Act’s reach,
but Parliament and the 1981 Act said nothing to that effect.
[101]  Were the exception for which AIAL contends to exist, it also seems
surprising that, despite s 40 being a much-litigated provision, the suggested
exception does not ever seem to have been the subject of litigation over the past
26 years and is not the subject of comment in the texts or commentaries on the
subject (eg McVeagh’s Local Government Law in New Zealand Vol. II para
PW40.04 p 12-24(b), para PW40.08 p 12-26(a)-(b);  Davies “The Obligation to
Offer Back Land Held For Public Works” (1991) 6 BCB 1, 3).
[102]  It is not to be overlooked that the Craigie Trust land was initially taken under
the 1928 Act, later declared to be Crown land under the Land Act 1948, and then set
aside under that Act and the Reserves Act 1977 when it was vested in the ARA in
trust subject to the establishment deeds.
[103]  But as the citation from s 167 of the Land Act 1948 says, upon being set
aside the land was “deemed to be dedicated for the purpose for which it was
reserved” and, under s 167(4) if the setting aside as a reserve was for “any public
purpose which is a Government work within the meaning of the Public Works Act
1981” the land was “deemed to be subject to that Act”. Auckland International
airport is a “Government work” under the 1981 Act (confirmed by s 3D of the
Authorities Act). Accordingly, on 1 February 1982 it must follow that all AIAL’s
land, including the Craigie Trust land, was deemed to be subject to the 1981 Act by
that Act substituting reference to itself in s 167(4) of the Land Act 1948.  Therefore,
it must also follow that the 1981 Act applies to the airport land, with the condition
only that, at least up until the vesting of the land in the Airport Company on 29
March 1988, the land must have been held conformably with the establishment deeds
and, of course, the Land Act 1948 and the Reserves Act 1977.
33

[104]  A further point in favour of the present interpretation is that the applicability
of s 40 is expressly extended to land held under “any other Act or in any other
manner for any public work”. That clearly supports the view the airport company’s
land, including the Craigie Trust land, being land held subject to the terms of the
establishment deeds, the Land Act 1948 and the Reserves Act 1977, was land held
under “any other Act or in any other manner” for a public work,
[105]  The next question must accordingly be whether that conclusion as to the
applicability of the 1981 Act is disturbed by later events.
[106]  During the move to privatisation and corporatization of significant
infrastructural assets in this country in the mid-1980s, care was taken by Parliament
to ensure existing rights were preserved.  The State-Owned Enterprises Act 1986 is a
significant example.
[107]  More germane to the present case are the amendments to the Authorities Act
and, more particularly still, the provisions of the Airport Act.
[108]  The former was amended to enact s 3D earlier cited. That specifically
provides that airports operated by airport authorities which were not local authorities
should be deemed Government works for the purposes of the 1981 Act. Since AIAL
was not a local authority, it would have been outside the definition of “airport
authority” in s 2 of the Authorities Act were it not for the fact that s 4(4) of the
Airport Act expressly deems AIAL to be an “airport company within the meaning of
the Airport Authorities Act” and s 2 of the Authorities Act defined “airport
company” as a company “for the time being authorised ... to exercise the functions of
a local authority”. It must accordingly follow that s 3D applies to AIAL and
Auckland International is “deemed to be a government work” for the purposes of the
1981 Act and a “public work” within s 40.
[109]  Turning to the other provisions of the Airport Act, as mentioned that Act
dissolved the establishment deeds thus freeing the airport and its land from any
restrictions they contained. Similarly, the terms of the Vesting Order made clear the
land was vested together with certain rights - but there was no saving provision for
34

any of the powers in the Land Act 1948 or the Reserves Act 1977 or its antecedents.
On vesting, the Auckland Airport land must accordingly be regarded as having been
also freed from any restrictions arising out of those statutes.
[110]  Significantly important in the present context, is s 7(4A) of the Airport Act.
Mr Galbraith argued the phrase “as if the company were the Crown” was specifically
designed to ensure the defendant was not to be regarded as the Crown but, with
respect, that argument is semantically indefensible. The combined effect of s 7(4)
and (4A) is that the vesting of the airport land in AIAL was not of itself to trigger the
offer back provisions of s 40 or any restrictions in the Land Act 1948 and the
Reserves Act 1977 but thereafter s 40 would apply “as if the company were the
Crown”. That ensured AIAL inherited the Crown’s obligations under s 40. That
interpretation is consistent with s 7(4) which provides that vesting under the Airport
Act is to have effect notwithstanding the 1981 Act, the Land Act 1948 and the
Reserves Act 1977.
[111]  The conclusion must be that, on the coming into force of the 1981 Act on 1
February 1982, Auckland International’s land, including the Craigie Trust land,
became subject to the 1981 Act as a matter of construction of that Act and s 167 of
the Land Act 1948. The obligations of s 40 of the 1981 Act were transferred to
AIAL as a result of the amendments earlier cited to the Authorities Act and the
passing of the Airport Act, coupled with the terms of the Vesting Order. Auckland
International’s land, including the Craigie Trust land, accordingly remains subject to
s 40 of the 1981 Act and AIAL is bound to honour its provisions unless exempted
therefrom by what follows.
[112]  That conclusion does not overlook the submission that Man O’ War Station
decided, in Mr Galbraith’s submission, that land held under the Reserves Act could
not also be held under the 1981 Act.
[113]  Man O’War is distinguishable. There, although the land had been taken
under the 1928 Act and later declared Crown land under the Land Act 1948, the
question in issue in the case was, as posited by the Judge (at 462), whether the
surrender of an access easement would revoke the reservation of the land under the
35

Reserves Act 1977. The decision is therefore inapplicable to the present question.
Notably, the same Judge took the view in Tamaki Trust that land required for a
public work was not excluded from also being a reserve under the Reserves and
Domains Act.
[114]  The next two questions can conveniently be considered together.
Section 40 of the 1981 Act applying to the airport company, does it still hold the
Craigie Trust land for “any public work” and is the land “no longer required
for that or any other public work” and what is the appropriate definition of the
status of the land, “aerodrome” or something else?
(1)
Aviation Experts
[115]  The major evidence on this aspect of the claim came from the parties’
opposing aviation experts.
[116]  The principal expert for the Craigie Trust was Mr Garfinkle, attorney,  former
part-owner of an airline, and an aviation consultant for about 20 years. His company
was deeply involved in the successful efforts of Airport Amsterdam Schiphol to
lease a terminal at JFK International in New York and acquire Brisbane
International. He has been involved in other airport privatizations, including in
China, and over the years has acted for numerous airlines and airports.
[117]  Mr Garfinkle posed the principal question in this part of the case as whether
the Craigie Trust land has been and is being used as an “aerodrome”.
[118]  He began his consideration by referring to New Zealand and overseas
statutory definitions, including the Chicago Convention.
[119]  Mr Garfinkle then set those definitions against the context of the origins of
the aviation industry and the evolution of facilities from “aerodromes” to “airports”.
[120]  His historical conspectus began from the end of World War II when
“aerodromes” were places where only basic facilities were provided for aircraft
landing and departing.  By the 1960s air travel had expanded significantly and
36

facilities at aerodromes provided basic traveller convenience in terminals and the
carriage of mail. By the mid-1970s business and leisure was more prevalent and
terminals became more spacious and provided additional facilities for increasing
numbers of travellers. Governments realized profits could be generated from such
facilities to off-set the cost of aviation services. Deregulation of airlines began in
1978 in the United States and spread to other countries, including Australasia, with
resulting dramatic increases in facilities provided to accommodate significant
passenger and freight growth. Food outlets and retail shopping appeared in
terminals. Further facilities were provided to capitalize on airport “dwell time” of
passengers and “meeters and greeters”. Airline competition forced airports to reduce
aeronautical charges which, in its turn, led to increased pressure on operators to
maximize other revenue. One stream was to permit activities associated with
aviation such as freight forwarders to relocate to airport land. All of that,
Mr Garfinkle said, by the mid 1980s led to the advent of the modern airport: “places
where people shop and occasionally planes land”, the reverse of what previously
obtained.
[121]  In many countries, those developments also led to corporatization of airports
free of Government ownership mandated to engage in commerce and be profitable.
Some were given significant land for that purpose.  That led airports in Europe, Asia
and China to call themselves “airport cities”.  Dial’s description in its 2006 annual
report of Auckland International as a “city within a city” echoed that concept.
[122]  World-wide, however, in Mr. Garfinkle’s view, evolution in airports has not
changed the essential character of an aerodrome and its functions. Commercial
activities including land use developments remain separate from core functions of an
aerodrome with, habitually, separate management, a view he supported by reference
to the management structure of several airports, including Christchurch. AIAL, he
said, reflected the same managerial arrangements with separate managers for retail,
property and aeronautical services: the airport company’s 2007 report describes
“aeronautical and non-aeronautical activities” as being the “two broad types of
company operations in terms of revenue and expenses”. The view was reflected in
other airport company documents he particularized.  He described the “almost
universal litmus test” of whether an activity is an “aerodrome” activity being
37

whether it is leased or out-sourced to third parties. Airport companies usually operate
“aerodrome” activities. Other entities provide everything else.
[123]  Throughout, Mr Garfinkle adhered to his view that essential facilities for an
“aerodrome” remain as they historically were, despite industry growth and
commercial activities, namely what is required to service and provide for flight
operations. Those facilities include runways, taxi-ways, aprons, hangars, navigation
facilities, control towers, passenger terminals and areas for freight, usually on
tarmac. However convenient it may be, not even freight forwarders are essential
facilities on an “aerodrome”. He made the point that rental car companies, car
dealerships, food facilities outside terminals, postal centres, duty free warehousing,
airport offices, commercial offices and freight forwarders – all at Auckland
International and some on the Craigie Trust land - are very often found,
internationally, “off airport”. Acknowledging it was more convenient and efficient
for facilities such as the International Mail Centre, an expedited courier service or a
freight forwarder of perishable goods to have facilities “on airport”, he nonetheless
knew of no other airport which included a car dealership and repair facility “on
airport”.
[124]  Mr Garfinkle’s view was that even in 1977, three years after the Trust land
was taken, given its then passenger throughput Auckland International’s discussion
of a second runway was no more than a dream 30 years or more into the future.  In
1983, shortly after the 1981 Act came into force, Auckland’s annual passenger
throughput was only 2.6 m, well below passenger numbers produced overseas by
deregulation so, again, talk of a second runway was “more aspirational than actual”
and still well beyond the 20 year horizon he said was common in airport planning.
The same was true in 1987, the year before corporatization and the vesting of the
land in the airport company. Passenger traffic then totalled 4.4 m. Even as late as
1997 the airport company’s planners were projecting the second runway was
unneeded within the next 10 to 15 years. The forecast proved accurate: the second –
short – runway now under construction will not come into operation until 2010-
2011.
38

[125]  All of that led Mr Garfinkle to the view that there was no “aerodrome
purpose” for the Craigie Trust land throughout the period under review or in the
foreseeable future. The only times Auckland International has posited a use of the
Craigie Trust land for “aerodrome purposes” under his definition was for six years
from 1981 when part was proposed for use as staff carparking and a brief period in
1985/1986 when the land was proposed for use for a new domestic terminal.  Both
were short-term. Neither eventuated. Virtually every airport company document
since 1988 spoke only of the Craigie Trust land being used or projected to be used
commercially. The airport company’s proposed use of the Craigie Trust land in its
2005 Master Plan was almost wholly commercial.  No actual or projected usage
came within his definition of “aerodrome”.
[126]  He suggested that, even had the Craigie Trust land been returned to the
plaintiffs earlier, that did not mean Auckland International’s development would
have been hampered. A private entity may have developed the land more intensively
than has occurred to date. Similar facilities as now exist may have been provided.
Return of the land to the Craigie Trust would not have affected the airport
company’s aviation operations as the land was “never part of the aerodrome and was
not and is not needed by AIAL for aerodrome purposes”, an assertion he supported
by reference to a number of airports, both in and out of New Zealand, which function
adequately as airports but do not provide facilities such as those on or proposed for
the Craigie Trust land. He particularly pointed to a number in China, in the United
States and Narita in Tokyo.
[127]  He was especially critical of AIAL’s defence alleging this claim should fail
because the Craigie Trust land was needed for future aerodrome purposes, pointing
to the lengthy history of lack of development and the current planning for use of the
Craigie Trust land for such purposes. He said “were the assertion to be accepted, no
land owned by the airport company would ever be returned to its original owners
because some day, well into the future, it might be required for such purposes
irrespective of what its planning documents had said over the years”. Airport “land
banking” was only legitimate when an airport knows with a high degree of certainty
it would need to build further “aerodrome” facilities - under his definition - within a
five year time span. His experience was that airports do not acquire land for an
39

aerodrome activity that might happen decades into the future. He supported that
“take only what you need when you need it” approach by reference to the third
runway at Frankfurt International.
[128]  Mr Garfinkle said airport Master Plans are “not real yet” because they are all
dependent on external factors over which the airport does not have direct control and
are affected by factors which they know might not happen.
[129]  Mr Garfinkle said the distinction between what was part of the “aerodrome”
and what was not might be what was on each side of security facilities, though he
acknowledged that as somewhat simplistic giving it would transect Auckland’s
terminals, and some facilities he regarded as part of an “aerodrome” - radar
installations, fuel facilities and piping, control towers, and the like - were outside the
security fence.
[130]  Mr Garfinkle accepted that the term “aerodrome” was seldom used in
documents relating to international airports around the world because:
It is not a term which laymen would use … We would call that patch of land
where planes land as an airport. But in legal parlance, it is like a term of art.
It means something. It is not just interchangeable with ‘airport’. If Los
Angeles was calling its airport “airport” in 1941, the Chicago Convention in
1944 said “aerodrome”. We have this document [Joint Venture Airports:
Principles & Procedures] just referred me to which uses the words
aerodrome and airport, and it says for the aerodrome that it was going to
have the definition of aerodrome as in … the CAA Act of 1948, … And
when 1981 came around we certainly weren’t calling airports probably in
any part of the world, commercial airports, aerodrome, but they [Parliament
in s 2 of the 1981 Act] chose to use the word “aerodrome”.
[131]  The airport company’s aviation expert was a Mr Smith, an engineer who has
specialized in airport planning and development for more than 35 years, working for
the British Airports Authority and ICAO on airports in Britain, Greece, the Middle
East and, later, on a large number of others around the world.
[132]  Mr Smith said harmonizing the broad range of interests in an airport and
endeavouring to reconcile the wide environmental impact of airports requires
extensive long-range planning from national strategies through regional plans down
to planning by individual airports in association with regulatory authorities.  Major
40

infrastructure development of facilities takes 5-10 years. Strategic planning must
accordingly look much further ahead to enable such developments to occur whilst
accommodating changes such as passenger and freight growth and aircraft types.
[133]  Mr Smith noted that in the four decades since Auckland International was
founded, aircraft technology and usage has changed unrecognizably with increases in
international trade and tourism driving rapid expansion.  Deregulation, privatization
and corporatization have all effected huge changes in airport services with the
consequence that in many cases future demand has been under-estimated. Thus, he
said, dynamic changes inherent in aviation mean airport plans can neither be rigidly
predetermined nor fixed for the long term.
[134]  He drew attention to IATA’s “Airport Development Manual” which defines
airport land use plans as desirably including:
•  Airside infrastructure, including runways …
•  Landside infrastructure including … terminals … hotels … primary and
secondary access roads … vehicle fuelling stations
•  Airport support infrastructure including …
•  Areas reserved for aviation related revenue producing development such
as industrial areas, duty free zones, etc.
•  Non-aviation related property and land with the current status and uses
specified
[135]  Mr Smith noted that land use plans prepared for the airport company largely
reflected that categorisation into airside, airside frontage and landside categories, the
last including roading, aviation support not requiring direct airside access, utilities
and commercial support and service functions.
[136]  While acknowledging the term “aerodrome” was used for any airfield and
facilities in the early days of aviation, Mr Smith said the common terminology since
the 1960s has been “airport”. “Airport” now applies to sites with sophisticated
facilities. “Aerodrome” is nowadays used for small airfields, usually for private
aviation.  International bodies have, to an extent, altered their terminology similarly.
ICAO used “aerodrome” in the 1940s but “airport” from the 1960s in its manuals.
41

The 2006 “Airport Economics Manual” includes guidance on the role of commercial
development on and around airports. That led Mr Smith to conclude:
In my experience, the term “aerodrome” is not in normal usage for modern
sophisticated and integrated airports (such as Auckland Airport). Nor is it
normal usage to speak of an aerodrome within an airport.  What may be
distinguished for specific purposes are airside operations as against landside.
“Airport” is a term which embraces the entire site and facilities of an
integrated operation.  Apart from continuing administrative documents,
“aerodrome” is not a term which is now applied to or within an airport.
The reality is that yesterday’s aerodrome has become today’s airport and a
more sophisticated and diverse business providing a wide range of
supporting facilities and services.
[137]  New Zealand has changed similarly between the 1961 “Joint Venture
Airports” manual through the establishment deeds to the Authorities and Airport
Acts, all of which he said “urge and authorize a commercial approach to airport
development”. The problems of New Zealand aviation and Auckland International
in particular were echoed in a number of countries and airports around the world.   In
the result, he said:
The Government gave Auckland Airport a commercial mandate to ensure
that it was efficiently managed to provide the capacity and levels of service
expected at an international airport, without subsidy.
(a)
In the short-term this involves effective use of existing assets to
deliver high service standards to airport users while realising a year
on year return on capital employed.
(b)
In the medium-term this involves new capital investment in
infrastructure and facilities to refurbish old and build new capacity
to maintain and enhance levels of service.
(c)
In the long-term it means planning and safeguarding the ability to
meet future requirements as they arise in an effective and efficient
manner.
[138]  Supporting his view that commercialisation is an integral part of a modern
international airport, Mr Smith pointed to Anne Graham “Managing Airports, an
International Perspective” (p 140-5) where the author observes:
A key development in the evolution of the airport industry has been the
increase in the dependence on non-aeronautical or commercial revenues.
There have been a number of factors which have contributed to the growth in
dependence on non-aeronautical revenues. First, moves towards
42

commercialization and privitization within the industry have given airports
greater freedom to develop their commercial policies and diversity into new
areas. …
Moreover, the airlines have been exerting increasing pressure on the airport
industry to control the level of aeronautical fees which are being levied. …
Most of the airport commercial facilities historically were provided for
passengers. Many airports, however, have now recognised the commercial
opportunities which exist with other consumer groups which use the airport
and have introduced facilities wholly or partially for their needs.  The
airports have thus exploited their commercial potential of being business or
commercial centres which generate, employ and attract a large number of
visits rather than just providing facilities for passengers who choose to use
the airport.  For example, staff employed by the airport operators and by the
airlines, handling agents, concessionaires, and government agencies may
wish to use airport commercial facilities, particularly as they may not be able
to combine a visit to their local shops and their working life at the airport.
Workers from nearby office complexes, or from airport industrial estates,
may find the airport facilities useful. Popular services include supermarkets,
banking services, hairdressers, chemists, and dry-cleaners. Some of these
services may be used by arriving passengers – another potential market sub-
segment which is generally considered to have significant spending potential
but has only more recently been recognized by most airports.
Visitors may also be attracted to airports if leisure facilities are provided. …
For the business community, conferences and meeting facilities can be
provided. Most major airports offer these. … Many airports have also
expanded beyond the boundaries of the traditional airport business by using
neighbouring land for hotels, office complexes, light industries, freight
warehousing, distribution centres, and business parks.
[139]  Mr Smith’s opinion was that such trends will continue. ICAO’s “Airport
Economics Manual” says (para 6.14) that:
The “Airport City” concept acknowledges the notion that large airports take
the characteristics of a real city.  They develop non-aeronautical services far
beyond the core business of providing a location for passengers. Airports
have not only become catalysts for employment and economic growth, but
they have attracted a full range of businesses to the airport vicinity …
Modern airports are becoming meeting places and indeed a destination in
their own right, with corporations scheduling meetings at or near airports to
maximize the valuable time of their managers.  Many hotel chains report that
airport hotels are among their most profitable properties, … a situation
which may entail different treatment in terms of revenue for the airport
operator.
Furthermore, the leading academic on the topic, Professor Kasarda of the University
of North Carolina’s Kenan-Flagler Business School, the person who coined the term
“aerotropolis” for the modern airport, opines:
43

Airports will shape business locations and urban development in this century
as much as highways did in the 20th, railroads in the 19th and seaports in the
18th centuries.
“Aerotropolis” attract industries related to time-sensitive manufacturing, e-
commerce fulfillment, telecommunications and logistics;  hotels, retail
outlets, entertainment complexes and exhibition centers; and offices for
business people who travel frequently by air or engage in global commerce.
Clusters of business parks, logistics parks, industrial parks, distribution
centers, information technology complexes and wholesale merchandise
marts locate around the airport and along the transportation corridors
radiating from them.
[140]  Mr Smith said that, as an airport planner:
All of the on-airport land use categories other than ‘commercial support and
services’ are considered direct aviation uses that are essential to the function
of an airport.
and that, at Auckland International:
Many of the existing and planned commercial land uses are airport related
and well sited for the convenience of the airport community … including
food outlets, supermarkets and banks, which are viable due to the distance to
alternative services. … As landside aviation support functions such as the
airport and airline offices and training facilities lead into this zone, the
demand for these employee support services will increase. Airport hotels,
conference facilities and recreational services reflect the nature of airports as
temporary destinations.  These facilities have become a common practice at
international airports for several decades.
[141]  He concluded:
Airport land use is determined by a profound hierarchy of considerations.
The site constraints and predominant wind direction largely determine the
runway alignment.  The space required for airfield areas are governed by
international standards for the category of aircraft use. Direct aviation
frontage categories of passenger and cargo terminals, and airside aviation
support functions take priority over landside aviation support functions.  The
configuration of road access, circulation and utilities depend on external
interfaces and internal links between the major functions.
The “commercial support and services” functions are located in the
remaining land, usually along road corridors.
The airport planners try to balance all of these categories to work together to
achieve an operationally efficient and financially viable airport complex.
[142]  Mr Smith detailed Auckland International’s planning history with reference
to increased passenger and freight throughput with particular reference to alterations
44

in land use through the various Master and Development Plans. He particularly
noted developments in road access and internal roading from the 1974 exploratory
plan onwards. By the 1985 Master Plan, the 20 year forecast proposed a second
runway by 1995 with 12 million passengers predicted by 2004 (reached in 2006).
The second runway and terminal requirements implied further changes to access
which would cross the Craigie Trust land.  That trend continued through the 1990
Land Use Development Plan. The 2005 Master Plan reflected the Manukau District
Council’s reduction in the second runway length from 3000m to 2150m. He was
firmly of the view that sufficient land should be retained to enable the second
runway to be of sufficient length for long haul use. A photo from the 2005 Master
Plan showed airside and direct landside aviation uses over about 72% of total land
area with commercial support and service facilities occupying about 12%.
[143]  With specific reference to the Trust land, in the short to medium term
Mr Smith said it was closest to airport access and thus the best available location for
support and service functions. The 1959 Master Plan showed expansion into the
southern portion including airfield infrastructure and aviation uses, something
constant from the Fisher & Associates’ report. The 1968 Master Plan showed
expansion of cargo and maintenance zones across the claimed land. The 1975
Exploratory Development Plan included a mix of aviation uses and roading along the
southern edge of the claimed land with airport access running through it and part
encroached on by a second or expanded terminal.  The 1985 Master Plan showed
domestic terminals and cargo extending eastwards into the claimed land, again with
access through it. The 1990 Master Plan also showed domestic terminal
development across the northern part of the claimed land with the southern portion
dominated by cargo and access roads. Long term, as shown in the 2005 Master Plan,
the Craigie Trust and other land east of George Bolt Memorial Drive will remain as
commercial support and services ancillary to the more directly airside functions but
with a multi-lane highway and possible rail access also installed.  Land uses
primarily commercial in nature will gradually be displaced by expanded facilities
requiring space near terminals or terminals themselves. All of that, he said, showed
the claimed land was “critical to the long-term safeguarding of primary direct
aviation functions and airport access”.
45

[144]  Mr Smith summarized his perspective by saying Auckland International will
continue as the principal international airport of New Zealand serving, in 40-50 years
time, perhaps thrice present levels of passengers and freight.  Both national and local
Governments had combined to ensure the airport’s land and its uses safeguarded
Auckland International’s position and served long-term economic and social
interests.  Long-term, the service requirements of direct aviation functions were
likely to use all the land contiguous to the airside frontage with the rest occupied by
infrastructure and support and service facilities. Airport land use planning requires
maximum flexibility to respond to unknown future requirements with aviation
functions progressively displacing lower priority functions on the airport land,
including the Craigie Trust land. Control of the airport’s future will most effectively
be achieved through continued ownership of all land presently held. Return of the
Craigie Trust land to the plaintiffs would cause conflicts between the airport
company and other developers and ultimately constrain airport activity.
(2)
Other Evidence
[145]  Additional evidence, largely from domestic sources, was called on each side
of that divide between experts. Some lapped over into succeeding questions dealt
with in this judgment.
[146]  A high level view of the development of the airport and its land, both past
and future, was given by Mr Huse, from mid-2003 until recently the airport’s Chief
Executive Officer. He said that, as with many other major international airports,
Auckland International undertakes quinquennial assessments of its economic impact.
The most recent, prepared in May 2007, described Auckland International as a
critical part of New Zealand’s economic infrastructure generating $19b of value to
the New Zealand economy and impacting directly or indirectly on 283,000 jobs
nationally.  Its value to the Auckland economy is $10.7b annually and about 154,000
jobs. Over 70% of tourists – the country’s largest export earner – arrive or depart
through Auckland International. It is the second equal most important freight port.
Domestically, 76% of all aircraft movements are through Auckland International.
Nearly 12.4m passenger movements occurred at Auckland International in 2007.
They are projected to rise to 24m by 2025. Airport employment will rise from
46

14,000 in 2005 to 33,000 by 2015.Mr Huse’s view was that Auckland International
is:
A vital piece of infrastructure. It has a significant responsibility to ensure
New Zealand is able to effectively communicate in trade both internally
within the country and externally with the outside world.
a role which has increased since privatisation in 1998. Mr Huse’s view was that:
The airport is a powerful example of how the Public Works Act can, through
far-sighted application over many years, reserve for the public interest a
public facility or work that serves the entire nation.
[147]  Mr Huse and other witnesses placed significant emphasis on the airport
company’s development strategies outlined in its 2007 annual report and in its
“Auckland Airport Master Plan: 2025 and beyond” issued in March 2006. The
latter, he said, is the airport company’s base planning instrument setting out, at a
high level, its projected development over a 20 year plus horizon. Mr Huse made the
point that, unlike overseas airports, the airport company has a major advantage
through owning all the land required for development over that horizon.
[148]  Since the 2005 Master Plan the airport company has undertaken a large
capital expenditure programme, including commencement of the northern runway in
October 2007 for local operators. Proposed development includes an aviation
campus in the precinct north of Tom Pearce Drive and south of John Goulter Drive
on the Trust land which would include offices for airport company staff and Air
New Zealand and a large learning centre for the latter.
[149]  He said the airport would be “heavily compromised” if the claimed land
returned to the plaintiffs. The airport company could not control land usage through
planning and the Trust land, situated as it is at the centre of the airport, would, if
returned to private ownership, confine the airport’s development in a way similar to
that experienced by other overseas international airports.
[150]  Much was made during the hearing of the diagrams for future development
shown in development plans and other planning documents, especially those in the
2005 Master Plan showing commercial development. The Trust land was central to
47

all those depictions. Mr Huse described the Trust land as a “heartland airport” site
central to the airport’s development and currently containing several aviation-related
facilities. He said it is “an integral part of the airport’s long term plan and provides
crucial flexibility for the airport need to meet projected growth over the longer
term”. In the Master Plan, Mr Huse noted proposed terminal expansions by 2025
will, of necessity, extend eastwards onto the Trust land ultimately displacing
commercial and freight forwarding development on that land. Present commercial
development on the Trust land has been principally directed towards providing
services supporting the airport’s core aeronautical functions but has also included
substantial filling, earthworks and infrastructure in and on the Trust land. Further, as
recently as 20 February 2008, the airport company was proposing creation of a
passenger service vehicle holding area which could be on part of the Trust land about
equidistant from the domestic and international terminals.
[151] In cross-examination, Mr Huse disagreed with the proposition that, while the
Trust land has been in airport ownership for well over 30 years, there has been little
commercial development on it throughout that time. He pointed to the trunk and
secondary roads and construction of the various facilities shown in the photographs.
Whilst perhaps only 15% of the Trust’s land had been built on over that period, the
use to which the land had been put, either underground or by above-ground facilities
was, in his view, critical to the airport.
[152] The Craigie Trust notified its claim to the airport company in August 2006
and began this proceeding two months later. Mr Huse denied the company had
advice subsequent to that time that it was advisable that some specific project such as
the passenger service vehicle holding area should be put in place for the claimed
land. This was despite references to a four-five star hotel and the holding area
appearing in board papers of November 2007 and February 2008 respectively with
reference in the latter that “development of the land for this ‘aerodrome related’
function is believed to be appropriate” being immediately followed by reference to
this claim. He took the same stance in relation to a 2008 airport company website
printout showing development of a business park, including offices, food and
beverage outlets and call centres on the claimed land. He denied the Trust land
48

continued to be held in “just in case”.  It was needed for future development.
Current plans for the land were conceptual only.
[153]  Historical and specific evidence was given by Messrs McDonald and Gollin.
[154]  Mr McDonald was an engineer with the airport for the 8 years to 1978, its
manager 1979-1984 and director of transport 1985-1988.
[155]  As manager, Mr McDonald reported to the Airport Committee, the meetings
of which were attended by Ministry of Transport officials because of the
Government’s obligation to contribute to financing development. Persuading
Government to contribute was often, Mr McDonald said, a tenuous process.
[156]  He said those involved with planning Auckland International were always
concerned to ensure it was able to develop as New Zealand’s principal gateway to
and from the world. Government’s 60% contribution to capital works showed it
shared the same vision. Initially the airport was an island of development in a rural
environment but planning with a 20 year horizon ensured airport development was
not constrained, unlike other international airports around the world.
[157]  He and a number of other witnesses spoke of problems with designation and
zoning restrictions at other airports. Designation and zoning restrictions on airport
land do not provide sufficient control to ensure overall integration of private land
into long-term plans. Provision of appropriate infrastructure such as water and
sewage reticulation can be compromised by private ownership. Private owners have
their own commercial interests and thus lack the resources and motivation necessary
for such a major enterprise as Auckland International.
[158]  Mr McDonald made the point that, even as far back as the establishment
deeds, the joint venture permitted the airport to develop “such other amenities of any
kind whatsoever as do not interfere with the efficient administration” of the airport
whilst the 1961 joint venture manual emphasized the division between airside and
landside activity with the latter charging commercial rents. That vision also
accorded with the 1981 Vicinity Plan and the 1985 Master Plan.  The latter had a 30
49

year horizon and recommended significant expansion at Auckland International
including the second runway. Acquisition of sufficient land for that additional
facility was a constant theme of reports over the years starting with the Fisher &
Associates’ report.
[159]  Acquisition of the Craigie Trust land, including realignment and increasing
the traffic capacity of George Bolt Memorial Drive and Tom Pearce Drive, was
strategically necessary for the airport. Flight catering kitchens were constructed on
the initial seven acre acquisition, followed by the freight forwarding building (the
“cargo shed” in the 1974 and 1975 “Gazette” notices, and now the AFFCA building)
to the south of Tom Pearce Drive. The perishable nature of a significant proportion
of airfreight made proximity to airside operations important.
[160]  Additional development on the Craigie Trust land during Mr McDonald’s
period as manager included installation of water and sewage reticulation and the
aviation turbine (“Avtur”) fuel pipeline and construction of the airport administration
centre.
[161]  Mr Gollin experienced both sides of the joint venture. After a decade with
MOT, principally dealing with corporatization of joint venture airports, he was
appointed commercial manager of the defendant in August 1988 and general
manager the following year. He left in 1997, returning to the airport in 2004, first as
general manager, corporate planning and strategy, and now general manager,
aeronautical.
[162]  He said the joint venture structure had deficiencies in lacking managerial
autonomy, largely arising from Crown opposition to continuing capital expenditure.
It was partly as a result that corporatization for efficiency was introduced with a
Government position paper “Airports – A new partnership” in June 1985. Thereafter,
airports were to be run as commercial businesses without State funding.  The Airport
Authorities Amendment Act 1997 was the vehicle.
[163]  Mr Gollin said the ARA was strongly resistant to corporatization and it was
necessary for the Airport Act to be passed to implement corporatization of the airport
50

company.  He said the Government essentially sold the airport to the airport
company as a going concern, with unfettered rights to use and generate revenue from
the vested assets.
[164]  Mr Gollin’s view was also that airport company ownership of land was by far
the best way to protect long-term development. It was not enough for an airport
company to own only the airside and closely associated facilities and rely on
acquiring additional land through purchase or compulsory acquisition.
[165]  He made the point that Auckland International is often a visitor’s first and
last impression of New Zealand. It is important that the congeries of facilities
tourists require – access to other transport (including rental cars and campervans)
supermarkets and the like – adds to that impression. Without land ownership,
provision of such facilities by the airport company was compromised.
[166]  Land ownership was also, in Mr Gollin’s view, essential for operational
reasons, particularly to accommodate increased demand and changing requirements.
He pointed to increased aircraft capacity, abrupt changes in security régimes since
9/11 and the necessity to accommodate smaller aircraft on the second runway as
demonstrating the necessity for, and wisdom of, long-range development planning at
the airport. He, and others, commented that acquisition of the area of land the airport
company now holds means that, unlike a number of overseas international airports, it
is curfew-free.  Such may not be the case were there to be private development
within the present airport boundaries which the airport company could not influence.
[167]  Many of the airport development plans were prepared by Airbiz Aviation
Strategies Pty Limited. Mr Fordham, its managing director, has been in airport
planning for 28 years and involved with many airport studies throughout the world.
Specifically, his company was involved in preparing the Auckland Airport 1988 and
1990 Development Plans, the 2005 Master Plan (and a 2007 draft Freight Master
Plan).
[168]  Mr Fordham said airport planning must start early and endeavour to provide
for developments up to 30 years in the future. He said airports need to be able to
51

control usage on their core lands which, in the case of Auckland International is all
the land between the two runways including the Trust land and significant land (and
height restrictions) beyond the end of each runway.
[169]  Drawing on international airport planning texts and his experience,
Mr Fordham said he knew of no international or domestic airport in Australasia
where there is land within the core airport area not owned or controlled by the
airport.
[170]  He, like other witnesses, stressed the present and likely future development of
the Craigie Trust land, first, for agencies with strong links to aviation, such as
Customs, MAF, and airline support organisations; secondly, for facilities required
by “on airport” businesses and workers such as banks and retail outlets; and, thirdly,
to service the needs of passengers and “meeters and greeters” such as car and
campervan rental agencies, car servicing, travellers’ accommodation and the
supermarket.
[171]  The 2005 Master Plan, Mr Fordham noted, took what he described as a
medium term view - 20 years - and a long-term view - 50 years. Since 1990 all
development envisaged by the Plan provides for terminal and other building
developments to be sited between the two runways but with facilities more directly
requiring space near runways – terminal increases, carparking and the like - possibly
squeezing other facilities to the fringes as aircraft parking and terminals expand.
Thus, the 2005 Master Plan envisaged usage of parts of the claimed land shifting
from commercial development to development more directly associated with airside
activity, including access.  Returning the Trust land to the plaintiffs would disrupt
such development with major roads and likely future rail access planned to pass
through it.
[172]  Mr Foster, Craigie Trust’s planner, carefully rehearsed the planning history
of the airport land including the claimed land, noting the 2002 Operative Manukau
District Plan accords the airport planning protection but restricts land used in “areas
designated but not used for activities necessary or associated” with the International
Airport (policy 17.6.4.6). The plan permits a range of additional activities but, that
52

notwithstanding, Mr Foster’s view remained that some of the uses to which the
Craigie Trust land is being put can only be regarded as ancillary to the airport’s
operation if a wide interpretation is adopted. His view was they could be established
on nearby land also owned by the airport company zoned Business 5 as some similar
uses are now.
[173]  In cross-examination, Mr Foster accepted the designation of sufficient land
for a second runway had been upheld or recognized in District Schemes and
designations approved by the Town and Country Planning Appeal Board
continuously since the late 1970s. He had never experienced a designation for an
airport being used for commercial purposes though he acknowledged uses such as
freight forwarding and carparking associated with aviation, including the airport’s
employees are, arguably “ancillary to airport operations”.
[174]  Questioned as to the feasibility of subdivision were the Trust land to be
returned excluding the principal roads and with its boundary transecting existing
buildings, Mr Foster said it would be necessary to “settle on boundaries that are
practical and achievable”.
[175]  Mr Foster’s planning counterpart for the airport company was Mr Gysberts.
[176]  His view, too, was that designations and zoning provide insufficient control
mechanisms to preserve the airport’s land for long term development.
[177]  The protracted process of achieving designations and zoning (including all
hearings and appeals) to preserve the possibility of future development at Auckland
International would result in significant delays and uncertainty with all concerned,
particularly AIAL, having little control over the ultimate outcome.  In addition,
designations and zonings only prevent incompatible development:  they have no role
in ensuring necessary or desirable development of airport land as the requiring
authority has no right to use that land. Hence Mr Gysberts’ opinion that planning
controls were insufficient of themselves to facilitate future development of its land
by the airport company. If some of the land required for airport development were in
private ownership, such as by the Craigie Trust, then irrespective of the uses
53

permitted by designations and zoning, the airport company would be powerless to
ensure developments were compatible with airport uses.
(3)
Submissions
[178]  A deal of Mr Carruthers’ submissions on this topic have been summarised
but, factually, he said the Trust land has been consistently linked with commercially
focused facilities unnecessary for, and outside the definition of, an “aerodrome”. In
plan after plan, document after document, the Trust land has been described or
shown as intended to be used for commercial premises, business parks, shopping
centres, hotels and the like, a submission he supported with detailed reference to
numerous documents from 1975 onwards. With the exception of George Bolt
Memorial Drive, Tom Pearce Drive and the flight kitchen, Mr Carruthers submitted
that none of the other developments which have occurred on the claimed land were
for an “aerodrome” but were ordinary commercial uses designed to maximise airport
company revenue. Naturally, he particularly relied on the 2005 Master Plan and
Airport Company Board papers prepared since receipt of the letter of claim. The
Board papers propose commercial development on the land serving areas well
beyond the airport boundary.
[179]  Decision on what amounts to an “aerodrome” in the present context is a
question of fact to be judged objectively. The Court of Appeal said in Attorney-
General v Hull [2000] 3 NZLR 63, 77, para [41]:
The first, and usually determinative criterion in s 40 is satisfied when in
terms of subs (1)(a) the land is no longer required for the purpose for which
it was taken. Whether that is so is a question of fact involving an assessment
of intention in the light of objective circumstances.  Proof that the land is no
longer required for the relevant public work may be achieved by
demonstrating an affirmative decision to that effect.  The point can also be
established by examining the conduct of the body holding the land and, if
appropriate, drawing an inference that the body has concluded that it no
longer requires the land for that work. Alternatively, the evidence may
establish that that was not the case and, for instance, that the landholding
agency remained in a state of genuine indecision.  But if any reasonable
person would undoubtedly have concluded that in all the circumstances the
land was no longer required for the relevant public work, the agency may
well have difficulty asserting that it has not so concluded, and therefore had
not come under any obligation to proceed in terms of the section.
54

[180]  The bulk of Mr Galbraith’s submissions on this aspect of the claim have also
been summarized but his specific argument on this part of the claim was that the
Craigie Trust land was acquired for a public works purpose, has been required for
such a purpose throughout and is still so required.
[181]  The terms “airport” and “aerodrome” were shown on the evidence to involve
a much broader interpretation than that for which the plaintiffs contend. In
contemporary terms, the evidence showed, he submitted, the Craigie Trust land
remains required as a “site for aerodrome” or as a “local purpose reserve (site for
aerodrome)” or any of the other formulations and has done so since acquisition.
[182]  Mr Galbraith submitted the plaintiffs could not demonstrate that the Craigie
Trust land was “no longer required” for its original use in terms of s 40 having
regard to the following authorities:
a)
Sisters of Mercy v Attorney-General (HC AKL CP 219/99 6 June
2001, para [65]) where it was held that “no longer required” is:
… not the same as not being used. Land (or part of it) may
not be used from time to time but that does not mean it is not
‘required’. For example, land may be required for future
expansion or for needs not yet specifically identified.
b)
Kerr-Taylor at pp 114-115, para [53]:
… I have concluded that the word “required” where it
appears in … s 40 of the Act … does indeed have its primary
meaning of need or necessity. The Act and its predecessors
were enacted for the purpose of taking land compulsorily
from landowners for uses required for the public benefit.  It
was always recognised by the legislature that to do so was a
significant interference with private rights.  Section 40 was a
clear recognition of the magnitude of that inference.  Hence,
s 40 provided for the return of the land by repurchase when
the public need no longer existed. To my mind, the cessation
of the element of need or necessity is fundamental to the
whole concept of the revesting by resale contained in s 40.
If that right was to be determined on the basis of cessation of
use as opposed to need, the rights envisaged by the section
would be substantially diminished. That they are intended to
be of very real worth has been made quite clear by the
Courts over many years.
55

c)
In Attorney-General v Edmonds (CA 97/05 28 June 2006 at para [29])
the Court of Appeal did not differ from Miller J’s observation in this
Court that “no longer required” does not mean “the authority must be
able to point to a specific project or use for the land at any given time”
and that:
[30] The Judge saw the question as one of ascertaining the
intention of the authority holding the land (Attorney-General
v Horton [1999] 2 NZLR 257 at 262).  The authority need
not make a conscious decision that the land is surplus
(Attorney-General v Morrison [2002] 3 NZLR 373 at [17]
(CA); Counties Manukau Health Limited v Dilworth Trust
Board [1999] 3 NZLR 537 at [25] (CA)).  Instead, intention
was to be assessed in light of the “objective circumstances”
and the “unequivocal public acts” of the land holding
authority.
[31] Miller J took it for the purposes of s 40(1)(a) that the
plaintiff had the burden of proving that the Crown had a
change of intention.
[32] Finally, the Judge found that it was necessary under
s 40(1)(a) for the Crown to have a “degree of commitment”.
[183]  Mr Galbraith submitted the “Gazette” notices, seen against the factual and
legal matrix including s 31 of the 1944 Act, the establishment deeds and the “Joint
Venture Airports” manual showed it was intended that all land owned by the airport
company should be used as an international airport to meet the present and future
needs of travellers and those involved in freight plus ancillary aviation facilities.
There was no suggestion in the documents of a distinction between “airport” and
“aerodrome” unless express reference to airside facilities required such. That
approach was also consistent with the Authorities Act giving authorities power to
carry on “any subsidiary business or undertaking” in connection with an airport and
requiring airports to be managed for commercial purposes. Defining “aerodrome” or
“airport” consistently with commerciality and future development was also
consonant with the Airport Act which did not limit use in its definition of “airport”
and set AIAL on a normal corporate footing.
[184]  Even if the definition of “aerodrome” in the 1981 Act applied, it was not
limited to airside purposes only. Such an approach ignored “partly” in the statutory
definition speaking of a “defined area” … used either wholly or partly … for the
56

landing … of aircraft”, thus encompassing uses ancillary to the provision of services
for passengers and freight.
[185]  Mr Galbraith submitted that, even if not all the Craigie Trust land was being
used “directly” for a “public work”, it was being used “indirectly” relying on Kett v
Minister for Land Information (HC AKL CP.404-151-00 28 June 2001) where
Paterson J held that “indirectly” in s 40 must be interpreted within the phrase
“directly or indirectly”, thus meaning that the land is required for “some associated
reason”. And in Hood  (CA 16/04 at para [68]) it was held that Play Centre land
leased as a commercial car park was still being used for the Centre’s purposes as it
was “let only when the play centre does not need it and, in any event, the resulting
funds are used for play centre purposes”.
[186]  In light of those authorities in combination with the airport company’s
planning documents, particularly the 2005 Master Plan and the evidence,
Mr Galbraith submitted any portion of the Craigie Trust land was being used
“partly” or if not “directly” for aviation purposes was being used “indirectly” for
such.
(4)
Discussion and Decision
[187]  The Craigie Trust land was taken for an “aerodrome”. The “Gazette” notices
consistently use that term – or an immaterial variation of it – throughout.
[188]  As it was not in contest that an “aerodrome” is and always has been a public
work, the first question on this aspect of the case is whether what has occurred in
relation to the Craigie Trust land and is forecast to occur means it has been shown
that the Craigie Trust land is “no longer required” for the public work of an
“aerodrome”. That resolves into the meaning to be ascribed to the term
“aerodrome”.
[189]  In that regard, the statutory definitions of “aerodrome” are of particular
importance. They have been consistent over a lengthy period, at least since the Civil
Aviation Act 1964. All centre around an “aerodrome” being land “intended or
57

designed to be used either wholly or partly” for aircraft movements plus buildings,
roads and equipment, “on or adjacent to any such area used in connection with the
aerodrome or its administration”. That definition was essentially repeated in the
Authorities Act but, of interest, by changing “aerodrome” to “airport”.
[190]  But while there has been significant uniformity of statutory definition of the
term, there was a certain force in Mr Galbraith’s submission that the establishment
deeds were less consistent in their use of the terms “aerodrome” and “airport”. They
tended to use the words functionally somewhat along the lines of the airside/landside
distinction.
[191]  Further, because there is no contest that airside facilities are comprised within
the “aerodrome” and because it was not in contest that the Craigie Trust land and the
developments on it are physically “adjacent to” airside facilities, the question
therefore becomes whether the uses to which the Craigie Trust land has been, and is
forecast to be, put are “wholly or partly” buildings, installations and equipment used
“in connection with the aerodrome or its administration”.
[192]  That essentially brings into focus the differences of view between Messrs
Garfinkle and Smith seen in light of the other evidence.
[193]  Mr Garfinkle regards “aerodrome” as still a term of art, essentially
unchanged in meaning since the Chicago Convention of 1944, though accepting that
in that sense “it is not a term which laymen would use”. Mr Smith regards that
definition as outmoded with the term “aerodrome” no longer being in “normal usage
for modern sophisticated and integrated airports such as Auckland Airport”.
“Aerodrome” is now largely discarded in favour of “airport” (or airport city or
aerotropoli) with airports around the world now consistently including a wide range
of facilities, some not obviously connected directly to the arrival and departure of
aircraft, their passengers, crew and freight and those involved in that activity, but
with all such activity being focused on providing revenue to the airport operator to
offset the losses inevitably derived from aircraft operations strictly so-called.
58

[194]  Mr Garfinkle has in favour of his interpretation that the definition of
“aerodrome” still remains in the 1981 Act and the other contemporary statutes. In
terms of statutory definition, however, against adoption of Mr Garfinkle’s
“aerodrome” definition is the alteration to “airport” in the Authorities Act, enacted
well before the 1981 Act and remaining unchanged since. It was therefore logical
for the Craigie Trust land to be taken for an “aerodrome” when there was no
statutory definition of “airport” and the only surprise is that the 1981 Act contained
no change to “airport” in its definitions when, by the time of its enactment, “airport”
had been defined in statute for 15 years.
[195]  Consideration of the expert evidence strongly indicates that both the term
“aerodrome” and interpretation of what is “wholly or partly … used in connection
with the aerodrome or its administration” should be accorded the definition for
which Mr Smith contended and that such should be regarded as having been the case
at least since the 1981 Act came into force.  By 1 February 1982 the nature of an
“aerodrome” both in New Zealand and around the world had changed from the
narrow definition espoused by Mr Garfinkle.  “Aerodromes” and “airports” by that
date offered a wide range of facilities which, in earlier times, might have been
thought unconnected with the “aerodrome or its administration” but which had come
to be as regarded as so connected by 1981 and increasingly so since. Evidence
showed that, certainly in common parlance and perhaps by some aviation experts, by
1981 those who used the term “aerodrome” were likely to have been using it in its
contemporary sense, the sense for which Mr Smith contended.
[196]  Then, considering what facilities should be regarded as included in the phrase
“wholly or partly … used in connection with the aerodrome or its administration”,
the appropriate conclusion should be that all facilities connected with the operation
of airports and meeting the expectations of airport users – travellers, staff, security
and border agents, travellers’ services, “meeters and greeters” and general airport
users – should be regarded as such. The facilities cited from the ICAO Airport
Development Manual provide a handy compendium of what should be regarded as
having been “used in connection with the aerodrome or its administration” since
1981, particularly in light of Auckland International’s consistent planning over those
59

years for the provision of such facilities on, amongst other parts of its land, the
Craigie Trust land.
[197]  That is not to disregard Mr Carruthers’ submission that over those years
Auckland International’s plans for the Craigie Trust land have varied significantly
and that, even now, only a small portion of the land has actually been developed with
facilities unarguably “used in connection with the aerodrome or its administration”.
[198]  However, that submission must be seen in light of the body of other evidence
as to the impact on an “aerodrome or its administration” of a failure to plan
sufficiently far ahead to meet the changes in aviation and to have sufficient land to
be able to accommodate those changes.
[199]  Interestingly, the Court of Appeal has recently discussed the ambulatory
interpretation to be accorded to words which have fallen out of common usage.  In
Big River Paradise Ltd v Congreve ([2008] NZCA 78, CA135/07 9 April 2008),
though dealing principally with the meaning to be ascribed to a covenant registered
against land, the Court of Appeal observed:
[25] The courts sometimes have to determine whether a particular word or
phrase has a static or mobile meaning, see Bennion, Statutory Interpretation
(4th ed 2002) at 1000 – 1004. This arises most commonly with statutory
provisions which incorporate standards (eg “fit for habitation”), the practical
implications of which are likely to evolve over time.
[26] Similar issues can arise where changes (perhaps technological in nature)
have affected the practical meaning of a word. Should a right of way for
“carriages” in an easement created in the mid-nineteenth century be
construed in a static way (ie by reference to the types of carriage then in use)
or receive a mobile interpretation as including motor vehicles? This
question arose in Attorney-General v Hodgson [1922] 2 Ch 429 (Ch), where
the word was held to encompass a motor car. It is important to recognise,
however, that the underlying  question is still one of interpretation of the
words as used in the instrument. In Hodgson, the interpretation issue was
whether “carriage” was intended to be used broadly (ie as a vehicle used for
carrying goods or people) or narrowly, by reference to the particular types of
carriage in use when the easement was created.
[27] A similar problem arose in Texaco Antilles Ltd v Kernochan [1973] AC
609 (PC), which concerned the phrase “public garage” in a restrictive
covenant entered into in 1925 in the Bahamas. In issue was whether this
phrase encompassed a service station, the primary function of which was the
sale of petrol. Such an establishment was said to have been “probably
unknown” in 1925. Although by 1973, a service station of this character
60

could fairly be regarded as a “public garage”, this was not a controlling
consideration. Instead the issue was whether such a service station, if
proposed in 1925, would have been seen then as properly described as a
“public garage”. In the end, what in a sense was a mobile interpretation (ie
that the phrase encompassed the service station) was adopted, but it was still
grounded in its intended 1925 meaning.
[28] Where a court has a choice between a static or a mobile interpretation,
the result of adopting a mobile interpretation is not to change the scope of
the underlying contract. For instance, the conclusion in Hodgson, that the
word “carriage” encompassed a motor car did not imply that the grantee of
the easement was not entitled to drive a horse and cart along the carriageway
in issue. And likewise, in Texaco Antilles, the conclusion that the phrase
“public garage” included a service station did not, as a corollary, mean that
the sort of public garage which was common in 1925 was no longer subject
to the restrictive covenant.
[200]  That approach can properly be adopted in this case. The evidence clearly
showed that, for almost all users, interpretation of the word “aerodrome” and what
was expected at such a facility changed significantly over time. By 1981 most
persons asked to define “aerodrome” would have described the facilities then found
at airports such as Auckland International.  By 1987 their views may have changed
to accommodate any increased facilities then expected to be available at airports. If
required to define “aerodrome” now, such a person is likely again to revert to the
present facilities at airports, particularly Auckland International.  An ambulatory
interpretation of the word “aerodrome” can therefore properly be held to encompass
the facilities commonly found at airports – Auckland International in particular - and
changing over time to what was and is now available.
[201]  Then, as the authorities demonstrate, land can continue to be “required” for a
public work even if it is not actually being used for such. As was said in Sisters of
Mercy, land may continue to be “required” for the purposes of s 40 even if only held
for future expansion. In that light, the Craigie Trust (and other) land has consistently
been “required” for that purpose and the developments which have taken place in
and on the Craigie Trust land to date and forecast, are shown all to have been
“wholly or partly … used in connection with the aerodrome or its administration”.
[202]  Examples include the provision of banking facilities for the millions of
travellers and thousands of staff at Auckland Airport and the rental car and
campervan parking and the supermarket servicing airport users and inbound tourists.
61

Food outlets can be similarly regarded.  Even Butterfly Creek, though primarily
recreational, offers convention facilities, now an important facility at airports.
[203]  Additional points supporting the interpretation adopted but with specific
reference to AIAL is the strong commercial and developmental thrust of the Airport
Act.  Further, the Vesting Order vested the airport’s land in the company together
with rights and licences “relating to it or to the operations and activities of the
airport”. That formula indicates that defining an area “wholly or partly … used in
connection with the aerodrome or its administration” should encompass land uses
relating to the “operations and activities of the airport”. That meshes with the
corporatization and privatization adopted for New Zealand airports from the mid-
1980s and fortifies the view that Mr Smith’s evidence is to be preferred in deciding
what comes within the definition of “aerodrome” (or “airport”) and facilities “wholly
or partly … used in connection with the aerodrome or its administration”.
[204]  An additional point supporting the views just reached is that s 40(1)(b)
directs attention to whether the land held for public work “is not required for any
other public work”. By statute, AIAL’s land is deemed to be a “Government work”
and it also comes within the definition of “airport” in the Authorities Act for the
reasons outlined. Consistently with s 40, AIAL’s land, acquired for a public work,
an “aerodrome”, even if no longer required for that public work, could be regarded
as “required for any other public work” namely the public work of an “airport”
because the facilities it provides are “wholly or partly … connected with the airport
or its administration” or used for the “operations and activities of the airport”.
[205]  For all those reasons the conclusion on this part of the case is accordingly
that the Craigie Trust land was and is held for the public work of a modern day
“aerodrome” or a modern day “airport”. Alternatively, if it was no longer required
for the public work of “aerodrome”, it is required for another public work, namely an
“airport”.
[206]  Findings to this point dispose of the case in favour of the defendant, but, lest
the conclusions come for reconsideration, it is appropriate to give relatively brief
consideration to the two aspects of the case not yet dealt with.
62

Had the Craigie Trust land been shown to be no longer required for a public
work of an “aerodrome” or “airport”, would it have been held that it would be
impracticable, unreasonable or unfair to require it to be offered back to the
plaintiffs?
[207]  In relation to those disjunctive questions, what must be borne in mind is that
the onus of demonstrating any of those matters lies on the airport company. And
Mr Carruthers made the point that authority mandates a high threshold for AIAL to
override former landowners’ property rights.   In Hood (at [97]) the Court of Appeal
held that in assessing that defence the interests of former owners must be considered
and there must be “good reason for these interests to be disregarded”.
[208]  Much of the evidence relevant to this aspect of the matter has already been
reviewed but it is here pertinent to review the evidence of Mr Ansley who has been
with the airport company since 1994 and is now its general manager, property. He
said the airport company normally funds the building shell with tenants meeting the
cost of internal fit-out and occupancy being by way of ground lease. Exceptions
include McDonalds where it paid for the building and the land is leased or licensed
to them; the power centre which was entirely constructed and paid for by the airport
operator; Butterfly Creek which was constructed at the lessee’s cost;  Rockgas
which is a ground lease where the company met the cost of the building; and the
service station which was erected at Shell’s cost. All the buildings south of Tom
Pearce Drive were constructed at the cost of the airport operator except Sky Chef
which was constructed at NAC’s cost many years before AIAL was formed.
[209]  Mr Ansley made the important point that all airport company leases contain a
clause giving the lessor the right to relocate lessees “at any time during the term … if
in the lessor’s opinion such relocation is necessary for the purposes of … expansion
or development at the airport”. Relocation has occurred on occasions.  Where
relocation occurs the lessee is entitled to an equivalent facility elsewhere on airport
land.
[210]  While there would be obvious practical difficulties directing the whole of the
Craigie Trust land be offered back to the plaintiffs, in closing submissions, without
in the least resiling from the primary thrust of the claim, Mr Carruthers outlined a
63

“fallback” position. Essentially it was for a declaration that AIAL should be
required to offer back to the plaintiffs that part of the Craigie Trust land not currently
built on or utilised by roading.
[211]  The Court would have held it would have been “impracticable” to require the
whole of the Craigie Trust land to be offered back but, were Mr Carruthers’
“fallback” position to be adopted, the conclusion would have been that it would not
have been “impracticable” to require the balance to be offered back. The reasons
would have included that, currently, most development of the Craigie Trust land has
been on ground leases which could be transferred to the plaintiffs. Developments
such as the Avtur pipeline and other subterranean infrastructure could be protected
by easements. The exceptions outlined might have required individual
consideration. While directing the whole of the Craigie Trust land be offered back
would pose obvious problems with the boundary passing through various buildings,
evidence showed the boundaries could be adjusted to avoid that result and the
decision of the Court of Appeal in McLennan v Attorney-General (CA41/00,
7 December 2000 paras [36] [49]) indicates the Court has power so to order.
[212]  Accordingly, though there may have been some practical difficulties in
requiring the whole of the Craigie Trust land to be returned, they would not be
insuperable –still less ‘impracticable’ to adopt the statutory term - particularly if the
order for offer back was partial, limited or conditioned to avoid the problems just
discussed.
[213]  The opposite conclusion would, however, have been reached in relation to
whether it would be “unreasonable or unfair” - in the context of this case those terms
are to be regarded as effectively synonymous and to be assessed in the round – to
require the Craigie Trust land to have been offered back to the plaintiffs.
[214]  This is partly for the reasons earlier discussed but principally because
Auckland International Airport is, as the evidence made plain, an infrastructural
asset of critical importance to the New Zealand economy. The site was chosen and
the facilities developed on international expert advice that Auckland International
should be developed as New Zealand’s gateway to and from the world and to and
64

from the country’s largest conurbation. For the developed country further from its
nearest neighbour than any other on the globe, that was pivotal to New Zealand’s
development.
[215]  Auckland International filled that role in contemporary terms when it was
opened. It has increasingly filled that role over the years since. And the evidence
makes clear its importance to New Zealand’s trade and economic future will not
diminish. Evidence established it to be vital for New Zealand’s future that Auckland
International continues to be able to develop to meet the ever-changing demands of
increasing international and national passenger and freight traffic over the years to
come.
[216]  In part, Auckland International’s success in fulfilling that role has resulted
from its ability to plan, install facilities and react to evolving aviation and users’
requirements unconstrained by lack of land or the need to take the interests of other
landowners within its present boundary into account.  It has, sensibly, dealt with land
use by users in a way which maintains maximum flexibility to accommodate future
changes.
[217]  There is a certain force in Mr Carruthers’ submissions that, even now, direct
aviation use of much of the Craigie Trust land is not forecast for a number of years
to come. However, evidence made clear that it is of paramount importance to the
development of this singular infrastructural asset that the airport company develops
its land in accordance with the requirements of aviation and airport users and it
would be severely hampered in that regard if it had to deal with the Craigie Trust’s
ownership of a large portion of land in the centre of the airport to achieve that aim.
This is particularly the case with possible future developments which might impinge
on or utilise parts of the Craigie Trust land. They include improved road access to
the airport, possible rail access, terminal development, installation of additional
freight precincts and other facilities amongst others.
[218]  Put simply, the importance to New Zealand, the Auckland region and all
those who use Auckland International in any capacity is such that the conclusion
would have been that AIAL’s continuing ability to use all the land it currently owns,
65

including the Craigie Trust land, in the way which best conduces to the interests of
all the airport’s users, was sufficient to outweigh what have been held to be the
Craigie Trust’s rights and was such as to make it “unreasonable or unfair” to direct
the claimed land be offered back to the plaintiffs.
[219]  In that regard, it is important to bear in mind that the Craigie Trust cannot
have been unaware of developments at the airport since before it was opened and
similarly cannot have been unaware of developments in and on its former land since
it was acquired from them. Yet it has taken no step – other than planning objections
–to oppose those developments. It is of note that the Craigie Trust has allowed over
quarter of a century to pass without seeking to invoke its rights under the 1981 Act.
It may well be the case, as Mr Carruthers urged, that the Craigie Trust would not
have been aware of all the detail of each of the airport’s proposed developments
affecting its former land nor of changes in what was proposed, but, that
notwithstanding, to stand by whilst obvious and very significant infrastructural
developments were occurring and then seek to recover, at 1982-1984 value, land
which will have become very much more valuable as a result of airport
developments over the years, is of significance.
[220]  And it is not as if the Craigie Trust has not been paid for the land
compulsorily acquired from it. It was paid compensation of $332,000 for its land by
agreement dated 3 October 1974 but challenged that compensation and when the
amount paid to the Trust was finally concluded by an Auckland Land Valuation
Tribunal decision delivered on 8 November 1984 – approximately the latest date for
valuing the offer back sought by the plaintiffs - after its appeals and zoning
objections had been concluded the Tribunal took the view the agreed compensation
had been rendered inadequate by the passage of time and awarded the Trust
significant additional interest. The Trust would thereby reap a windfall if successful
in this litigation.
[221]  Had the plaintiffs succeeded in this claim, a further possibility is that, the
Craigie Trust land being seen as so centrally important to airport development, the
airport company, which paid full value for the whole of its land on acquisition
following vesting, may have felt the need to negotiate with the Trust to re-purchase
66

the claimed land from it at present value, a value significantly enhanced by the
airport and, latterly, the airport company’s capital expenditure. That possibility, too,
might yield the Trust a windfall and is a further factor affecting unreasonableness or
unfairness.
[222]  Mr Lambie said the Trust would co-operate with the airport company. No
doubt he would wish it so to do but that was a non-binding offer of co-operation, and
his fellow or future trustees might have taken the view that such co-operation was
not necessarily discharging their duty to act in the best interests of their beneficiaries.
And without full and continuing co-operation from the Craigie Trust the airport
company would have risked its future development being compromised - not fatally,
as some of the witnesses accepted - but compromised nonetheless. If the Craigie
Trust were not prepared to do essentially everything the airport company required of
it in relation to its land, the airport would be powerless to compel compliance and its
capacity to service the growing needs of all those using and involved with the airport
would be correspondingly inhibited.
[223]  All that, as the evidence plainly showed, would be detrimental to the
New Zealand economy, air passengers, air freight and all those associated with the
airport facilities. Quite apart from the millions of passengers, millions of airport
users and thousands of employees, facilities such as exist at Auckland International
and are proposed are appropriate for its population, one about the same as a
moderately-sized New Zealand town, and it would have been unreasonable or unfair
to imperil the development and usage of so important a facility as the airport.
[224]  That would have led to the conclusion that it would have been unreasonable
or unfair to require the airport company to offer the Craigie Trust land back to the
plaintiffs.
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Had the Craigie Trust land been shown to be no longer required for a public
work would it have been held that there had been a significant change in the
character of the land such that AIAL would not have been required to offer it
back to the plaintiffs?
[225]  Logically, the onus of demonstrating significant change in character, as with
the exceptions in s 40(2)(a), should be on the defendant who asserts such. As to the
relevant date, Mr Galbraith is correct that there seems to be nothing in precedent
indicating the date at which change in character should be assessed but, logically,
that, too, should be decided as at the date it is asserted. Points made elsewhere in
this judgment, particularly in para [207], apply here as well.
[226]  As counsel acknowledged, authority on construing what amounts to a
“significant change in the character of land” under s 40(2)(b) is sparse. In
submissions, Mr
Galbraith relied on the LINZ report “Statutory Right of
Repurchase”. In chapter 20.5.1 (p 24) “significant change” is defined as being
“where the character of the land has changed … to the point where the former owner
would get back land which was substantially different in nature from that taken”.
Guideline 6 (p 70) in that report notes that in Auckland City Council v Taubmans NZ
Ltd [1993] 3 NZLR 361, 366, Barker J held that demolition of buildings for
carparking could amount to a significant change in land character. The LINZ report
gives examples of significant changes by reference to scale, construction, condition,
value and longevity of buildings and improvements, and includes land reclamation
and major landscaping.
[227]  On this part of the case, Mr Carruthers again stressed that the major portion
of the Craigie Trust land remains in grass and, whatever developments might
ultimately occur, most of the land is destined to remain in grass for many years to
come.
[228]  That may be true, but, against that, since the Craigie Trust land was acquired,
parts have been built on, roads have been constructed on part, utilities such as the
airport’s electricity sub-station have been installed on another part, there are
significant subterranean improvements on it such as the Avtur pipeline, drainage
ponds have been constructed on another part, much of the grassed portion of the land
68

has been reclaimed and most of it re-contoured. It is now largely unrecognizable as
the rural dairy farm it once was. For the Craigie Trust now to get the land back
would mean it would be receiving land substantially different in nature from that
taken.
[229]  Also pertinent to this aspect of the decision is to recall that s 40(2)(b) speaks
of there having been a “significant change in the character of the land” but ties that
to the “purposes of, or in connection with, the public work for which it was acquired
or is held”. That re-directs attention to the public work purposes of acquisition and
retention and, in this case, to the developments and proposed developments in and on
the Craigie Trust land elsewhere discussed in this judgment. The effecting and
proposed effecting of those public work purposes entitles the airport company to the
exception in s 40(2)(b).
[230]  In light of that, it must be the case that, largely for the reasons led the Court
to conclude that the Craigie Trust land was still held for a public work and would
have led to a finding that it would be unreasonable or unfair to require the airport
company to offer the land back to the plaintiffs, it would have been held that,
because of the developments which have occurred in and on the Craigie Trust land
since it was acquired and which were for the purposes of or connected with the
public work of an “aerodrome” or “airport”, there has been a significant change in
the character of the Craigie Trust land. The plaintiffs’ claim would have similarly
failed on that ground.
Conclusion
[231]  For all the reasons set out in this judgment, the Court concludes that all the
plaintiffs’ claims against the defendant fail though -
a)
Auckland International Airport Limited is subject to the obligations of
s 40 of the Public Works Act 1981;
b)
the land formerly owned by the plaintiffs and held for a public work
of an “aerodrome” is and will continue to be required for that public
69

work or that, it no longer being required for that public work, it
remains held for the public work of an “airport”;
c)
That, had it been necessary so to do, the Court would have concluded
that it would not have been impracticable but would have been
unreasonable or unfair to require Auckland International Airport
Limited to offer all or part of the land back to the Craigie Trust and
that there had been a significant change in the character of the land for
the purposes of or connected with the public work for which the land
was acquired and is held and accordingly the defendant was not
obliged to offer it back to the plaintiffs.
d)
As to costs, each of the parties having been successful to a significant
degree, the Court’s inclination is that costs should lie where they fall.
If, however, either party wishes to seek costs then memoranda may be
filed (maximum 10 pages) with that from the defendant being filed
and served within 28 days of delivery of this judgment and that from
the plaintiffs within 35 days of delivery and with counsel certifying, if
they consider it appropriate so to do, that all issues of costs may be
determined without further hearing.
…………………………..
WILLIAMS J.
Attachments: Annexe 1
Annexe 2
70

IN THE COURT OF APPEAL OF NEW ZEALAND
CA440/2008
[2009] NZCA 621

BETWEEN
MICHAEL SHANE MCELROY &
OTHERS
Appellants
AND AUCKLAND
INTERNATIONAL
AIRPORT LIMITED
Respondent

Hearing:
22 and 23 September 2009
Court:
Chambers, Robertson and Ellen France JJ

Counsel:
C R Carruthers QC, B H Dickey and T M Molloy for Appellants
A R Galbraith QC, S J Katz and L A Macfarlane for Respondent
Judgment:
23 December 2009 at 11.30 a.m.

JUDGMENT OF THE COURT

A
The appeal is dismissed.

B
The cross-appeal is dismissed, save that the declarations contained in
order A of the High Court judgment are varied as follows:

(a)
A declaration is made that the land formerly owned by the
appellants is held for a public work in terms of the Public Works
Act 1981;

(b)
A declaration is made that that land is still required for a public
work, namely the Auckland International Airport.
MICHAEL SHANE MCELROY & OTHERS V AUCKLAND INTERNATIONAL AIRPORT LIMITED CA
CA440/2008 [23 December 2009]

C
The appellants must pay the respondent costs for a complex appeal on a
band B basis, plus usual disbursements. We certify for:

(a)
a uplift of 50 per cent in terms of r 53C(1)(b) of the Court of
Appeal (Civil) Rules 2005; and
(b)
second
counsel.
D
We make no order for costs on the cross-appeal.
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Table of Contents

Para No
Introduction [1]
Background [6]

The beginnings of an international airport [6]

Land is acquired from the Craigie Trust [12]
The legislative framework [14]

The Public Works Act 1981 [25]

The 1980s: Auckland Airport is privatised [32]
Scope of the public work [47]
“Impracticable, unreasonable or unfair” and the “character” of the land [79]
Conclusion [87]

Introduction
[1]
The respondent (“AIAL”) owns approximately 1,100 hectares of land at
Mangere. The appellants, who are trustees of the Craigie Trust, formerly owned
36.626 hectares of that land. It was lawfully acquired by the Crown in 1975.
[2]
In a proceeding heard in 2008 by Hugh Williams J at the High Court in
Auckland, the Craigie Trust sought a declaration that AIAL was under an obligation
pursuant to s 40 of the Public Works Act 1981 (“PWA 1981”) to offer the trust land,
at its assessed value, back to the Craigie Trust on 1 February 1982 (or within a

reasonable time thereafter), because it was no longer required for the public work
purpose of an “aerodrome” for which it was taken and held. In the alternative, if the
land had been disposed of in circumstances that it could not be offered back, the
Craigie Trust sought damages from AIAL for breach of statutory duty in disposing
of the land without complying with s 40 of the PWA 1981.
[3]
Hugh Williams J dismissed Craigie Trust’s claim: HC AK CIV 2006-404-
5980 27 June 2008 (reported in part at [2008] 3 NZLR 262). His formal judgment
read as follows:
A
(1)
all the plaintiffs’ claims against the defendant fail

(2)
though Auckland International Airport Ltd is subject to the
obligations in s 40 of the Public Works Act 1981

(3)
but the land formerly owned by the plaintiffs and held for
the public work of an “aerodrome” is and will continue to be
required for that public work or that, it no longer being
required for that public work, it remains held for the public
work of an “airport”.
B
Had it been necessary so to do, the Court would have concluded that
it would not have been impracticable but it would have been
unreasonable or unfair to require Auckland International Airport
Limited to offer the land back to the plaintiffs and that there had
been a significant change in the character of the land for the
purposes of or connected with the public work for which the land is
held.
C
Costs are to be dealt with as in para [231] of this judgment.
[For convenience, we have broken order A into 3 parts.]
[4]
The Craigie Trust appeals against orders A(1), A(3) and  B. AIAL cross-
appeals against order A(2). AIAL also seeks to uphold the judgment on other
grounds. In particular, AIAL argues that, even if the appellants establish that the
trust land was held for a public work but was no longer required for that public work,
offering the land back to the Craigie Trust is not only unreasonable and unfair, but
also impracticable.
[5]
Five issues arise on appeal:

(a)
When the PWA 1981 came into force on 1 February 1982, did s 40 of
that Act apply to the trust land, such that the trust land was held in
accordance with that section and subject to its offer-back
requirements?
(b)
If not, did the trust land nonetheless become subject to s 40 at a later
date?
(c)
If the trust land is held for a public work within s 40 of the PWA
1981, what is the scope of the relevant public work?
(d)
If s 40 does apply to the trust land, is the land no longer required for
the public work for which it was held?
(e)
If the land is no longer required, would it be impracticable,
unreasonable or unfair to require AIAL to offer the land back to the
Craigie Trust?
Background
The beginnings of an international airport
[6]
Shortly after the Second World War, the Government began investigating a
new major international airport for Auckland. Following advice, it considered a
model of a “joint venture” airport.
[7]
In 1955 the Government determined that the airport should be situated at the
present day Mangere site and by 1959 the Crown had acquired most of the land it
needed.
[8]
In September 1960, the Crown and the Auckland City Council entered into an
agreement to develop Auckland Airport as a joint venture.  There was an initial deed,
dated 24 September 1960, which applied s 31 of the Finance Act (No. 3) 1944
(“Finance Act”) to the “purchase or acquisition of the land required for development
of the International Airport and carrying out of present and future works”.   The 1960

deed was superseded by a second deed, (“the principal deed”) signed on
25 November 1963 but deemed operative from 24 September 1960. The principal
deed stated that the construction of the airport was to be “a work of both national and
local importance” in terms of s 31 of the Finance Act, and that its development was
to be funded jointly by the Crown and the Auckland City Council/Auckland
Regional Authority.
[9]
The principal deed was amended on 13 April 1966. The amendment (“the
supplementary deed”) provided that land for the airport was to be acquired by the
Crown and then vested in the Auckland Regional Authority under s 19 of the
Reserves and Domains Act 1953.  (The Auckland Regional Authority Act 1963 had
come into force on 25 October 1963 and had provided for the Auckland Regional
Authority to assume liability for those functions, assets and liabilities of the
Auckland City Council connected with the airport.)
[10]
The appellants’ land was first officially considered by a Gazette Notice of
30 January 1975 which read as follows:
Pursuant to section 32 of the Public Works Act 1928, the Minister of Works
and Development hereby declares that that a sufficient settlement to that
effect having been entered into, the land described in the Schedule hereto is
hereby taken for an aerodrome from and after the 30th day of January 1975.
[11]
At the time, it was contemplated that a second runway would cross the land.
There is not, therefore, any challenge to the lawfulness of the initial acquisition.
Land is acquired from the Craigie Trust
[12]
By Gazette notice of 1 December 1977 it was declared:
Pursuant to section 35 of the Public Works Act 1928, the Minister of Works
and Development hereby declares the land described in the Schedule hereto
to be Crown Land subject to the Land Act 1948, as from the 1st day of
December 1977.
[13]
Then, by Gazette notice of 12 October 1978 it was declared:
Pursuant to the Land Act 1948, the Minister of Lands hereby sets apart the
land, described in the Schedule hereto, as reserves for local purpose
(aerodrome), and further, pursuant to the Reserves Act 1977, vests the said

reserves in the Auckland Regional Authority, in trust for that purpose subject
to the deed between the Crown and the Auckland City Council, dated 25
November 1963 and the deed between the Crown and the Auckland
Regional Authority, dated 14 April 1966.
The legislative framework
[14]
The Public Works Act 1928 (“PWA 1928”) was in force at the time the
Craigie trust land was acquired. When the PWA 1928 was enacted, it made no
express reference to civil aviation, or to aerodromes, although s 2(1) of the Public
Works Amendment Act 1935 empowered the Governor-General or a local authority
“to take or otherwise acquire under the provisions of the principal Act any area of
land required for the purposes of an aerodrome”. “Aerodrome” was not defined until
1956, when the PWA 1928 was amended a second time. Section 7(1) of the Public
Works Amendment Act 1956 provided that:
For the purposes of the principal Act the term “aerodrome” means an
aerodrome or proposed aerodrome that is owned or controlled by the Crown
or a local authority.
[15]
Section 35 of the PWA 1928 provided, relevantly, as follows:
35
Land taken for public work and not wanted may be sold, etc.—
(1)
If it is found that any land held, taken, purchased, or acquired at any
time under this or any other Act or Provincial Ordinance, or otherwise
howsoever, for any public work is not required for that public work, the
Governor-General may, by an Order in Council publicly notified and
gazetted, cause the land to be sold under the following conditions:
(a)
A recommendation or memorial, as the case may be, as provided by
section 23 of this Act shall be laid before the Governor-General by
the Minister or local authority at whose instance the land was taken
describing so much of the said land as is not required for the public
work...:
(b)
The Minister of the local authority, as the case may be, shall cause
the land to be sold either by private contract to the owner of any
adjacent lands, at a price fixed by a competent valuer, or by public
auction or by public tender...:
...
Provided also that in the case of any land so held, taken, purchased, or
acquired for a Government work, if the land is not required for that purpose,
or if for any other reason the Minister considers it expedient to do so, he may
at any time without complying with any other requirements of this section,

by notice in the Gazette, declare the land to be or to have been Crown land
subject to the Land Act 1948 as from a date to be specified in the notice
which date may be the date of the notice or any date before or after the date
of the notice; and as from the date so specified the land shall be or be
deemed to have been Crown land subject to the Land Act 1948:
Provided further that in the case of any land so held, taken, purchased or
acquired for a local work, if the land is not required by the local authority for
that purpose or if for any other reason the Minister and the local authority
agree that it is expedient to do so, the Governor-General may, on the
recommendation of the Minister and without complying with any other
requirements of this section, by Proclamation declare the land to be Crown
Land subject to the Land Act 1948, and thereupon the land shall vest in the
Crown as Crown land subject to that Act and may be administered and
disposed of under that Act accordingly.
...
[16]
The effect of the two provisos in s 35 was to permit, upon agreement between
the Minister and the relevant local authority, land previously taken under the PWA
1928 to be vested in the Crown and thereafter subject to the Land Act 1948 (“Land
Act”). By this mechanism land not required for the purpose for which it was taken
became Crown land in terms of the Land Act.
[17]
From 1 December 1977 the trust land became subject to the Land Act and
from 12 October 1978 the trust land was set apart as a reserve under s 167(1) of the
Land Act and, pursuant to the Reserves Act 1977 (“Reserves Act”), vested in the
Auckland Regional Authority in trust for the local purpose of an “aerodrome”.
[18]
In relevant part, s 167 of the Land Act provides:
167
Land may be set apart as reserves
(1)
The Minister of Conservation may from time to time, with the prior
consent in writing of the Minister of Lands, by notice in the Gazette, set
apart as a reserve any Crown Land for any purpose in which in his or her
opinion is desirable in the public interest. Every such notice shall take effect
from the date thereof or from such later date as is specified in the notice.
...
(2)
Upon the notice aforesaid being published in the Gazette, the land
described therein shall be and be deemed to be dedicated to the purpose for
which it was reserved, and may at any time thereafter be granted for that
purpose in fee simple, subject to the condition that it shall be held in trust for
that purpose unless and until that purpose is lawfully changed.

...
(4)
Where any Crown land is set apart as a reserve under this section for
any public purpose which is a “Government work” within the meaning of the
Public Works Act 1928, the land so set apart shall be deemed to be subject to
that Act, save that section 35 of that Act, other than the second and third
provisos to that section, shall have no application thereto.
[19]
The effect of s 167(4) was to make the sell-back provisions of s 35 of the
PWA 1928 inapplicable to the trust land.
[20]
Having declared the trust land set apart as a reserve under the Land Act, the
Gazette notice of 12 October 1978 then invoked the Reserves Act, pursuant to which
the trust land was vested in the Auckland Regional Authority (“ARA”). The ARA
was to hold the land in trust, for the declared local purpose of an aerodrome, subject
to the establishing deeds.
[21]
In relevant part, s 26 of the Reserves Act provides:
26 Vesting
of
reserves
(1)
For the better carrying out of the purposes of any reserve (not being
a Government purpose reserve) vested in the Crown, the Minister may, by
notice in the Gazette, vest the reserve in any local authority or in any trustees
empowered by or under any Act or any other lawful authority, as the case
may be, to hold and administer the land and expend money thereon for the
particular purpose for which the reserve is classified.
(2)
All land so vested shall be held in trust for such purposes as
aforesaid and subject to such special conditions and restrictions as may be
specified in the said notice.
[22]
In Dunbar v Hurunui District Council HC CHCH CIV 2004-409-000171
5 August 2004, Panckhurst J stated that land held (under the predecessor of s 26 of
the Reserves Act) as a “public reserve” was not subject to the PWA 1981. The
discussion in that case is not, however, germane to the present case because the trust
land was held for a public work (aerodrome), whereas in Dunbar the reserve was not
a public work.
[23]
Finally, by Gazette notice of 30 October 1980, the trust land was reclassified
as a reserve under the Reserves Act, in the following terms:

Pursuant to the Reserves Act 1977, and to a delegation from the Minister of Lands,
the Assistant Commissioner of Crown Lands hereby declares the reserve, described
in the Schedule hereto, to be classified as a reserve for local purpose (site for
aerodrome), subject to the provisions of the said Act.
[24]
From 12 October 1978, the trust land was vested in the ARA and held on
trust for the local purpose of an aerodrome, and subject to the establishing deeds.
The Public Works Act 1981
[25]
The PWA 1981 came into force on 1 February 1982. Part 3 of the Act, of
which s 40 was a part, was entitled “Dealing with land held for public works”.
Section 40, in its current form, provides as follows:
40
Disposal to former owner of land not required for public work
(1)
Where any land held under this or any other Act or in any other
manner for any public work—

(a)
Is no longer required for that public work; and

(b)
Is not required for any essential work;

(c)
Is not required for any exchange under section 105 of this
Act—
the Commissioner of Works or local authority, as the case may be, shall endeavour
to sell the land in accordance with subsection (2) of this section, if that subsection is
applicable to that land.
(2)
Except as provided in subsection (4) of this section, the
Commissioner or local authority shall, unless he or it considers that it would
be impractical, unreasonable, or unfair to do so, offer to sell the land by
private contract to the person from whom the land was acquired or to the
successor of that person, at a price fixed by a registered valuer, or, if the
parties so agree, at a price to be determined by the Land Valuation Tribunal.
(3)
Subsection (2) of this section shall only apply in respect of land that
was acquired or taken—

(a) Before the commencement of this Part of this Act; or
(b) For an essential work after the commencement of this Part of this
Act.
(4)
Where the Commissioner or local authority believes on reasonable
grounds that, because of the size, shape, or situation of the land he or it could
not expect to sell the land to any person who did not own land adjacent to
land to be sold, the land may be sold to an owner of adjacent land at a price
negotiated between the parties.

(5)
For the purposes of this section, the term “successor”, in relation to
any person, means the person who would have been entitled to the land
under the will or intestacy of that person had he owned the land at the date of
his death; and, in any case where part of a person’s land was acquired or
taken, includes the successor in title of that person.
[26]
Mr Carruthers submitted, and Hugh Williams J accepted, that the trust land
became subject to s 40 on 1 February 1982. Mr Carruthers submitted that, as by that
date the trust land was no longer required for the public work for which it had been
acquired, namely an aerodrome, the value of the land should be fixed as at 1
February 1982. We are satisfied that, regardless of whether the trust land was “no
longer required for [the] public work” at that time, AIAL could not be required now
to offer the land back at its 1982 valuation. There are possibly two reasons why that
is so.
[27]
First, the public work fell within s 224 of the PWA 1981. The relevant parts
of the section provided:
224
Government and local authority may combine in works of both national
and local importance
(1)
Notwithstanding anything to the contrary in any Act or rule of law, where in
the opinion of the Minister of Finance and the Minister of Works and Development
any undertaking, whether a public work within the meaning of this Act or not, is of
both national and local importance, the Minister of Works and Development and any
local authority or local authorities may enter into and carry out such agreement for
the acquisition, execution, control and management of the undertaking as may to
them seem most suited to the circumstances.
...
(19)
Notwithstanding anything to the contrary in this Act, any land taken,
acquired or used for any undertaking in respect of which an agreement has been
made under this section may be transferred or leased to any party to the agreement,
or sold or otherwise disposed of, and the proceeds thereof shared or distributed, in
accordance with the provisions of the agreement.
[28]
Section 224 was, in the PWA 1981, the corresponding provision to s 31 of
the Finance Act. By virtue of s 20A of the Acts Interpretation Act 1924, the joint
venture deeds, which had been entered into pursuant to s 31 of the Finance Act, were
now to be treated as if they had been made under s 224.

[29]
The probable effect of s 224(19) was that the joint venture deeds, in so far as
they provided for the matters specified in subs (19), trumped s 40.
[30]
Secondly, AIAL was not in existence in 1982. Even if the joint venture had
become potentially subject to s 40, its liability to the Craigie Trust would not pass to
AIAL unless such was subsequently agreed by AIAL. As we shall show, this was
never agreed. Mr Carruthers never clearly articulated how any potential obligation
on the Crown or the joint venture could have become an obligation of AIAL.
[31]
Neither of these reasons appears not to have been advanced and certainly not
emphasised before Hugh Williams J. Had they been, we suspect he would have
come to the same conclusion we have.
The 1980s: Auckland Airport is privatised
[32]
In 1987 the Auckland Airport Act 1987 (“Auckland Airport Act”) was
enacted. Its long title stated that it was:
An Act to provide for the incorporation of a company to own and operate
Auckland International Airport, for the transfer of airport assets and
liabilities of the Crown, the Auckland Regional Authority, and certain local
authorities to that company, for the payment to the Crown and those local
authorities of the existing reserves of the airport...
[33]
Section 7 provided as follows:
7
Additional provisions relating to vesting of airport assets and
airport liabilities in company:
...
(4)
The provisions of this Act vesting any assets or liabilities in the
company shall have effect notwithstanding any enactment, rule of law or
agreement, and, in particular, but without limitation, the provisions of this
Act vesting any land in the company shall have effect notwithstanding any
provision contained in the Land Act 1948, the Reserves Act 1977, or the
Public Works Act 1981 or in any other Act relating to land.
[34]
Pursuant to the Auckland Airport Act, the Auckland Airport (Vesting) Order
1988 was made. Section 3 of the Order vested airport assets and liabilities in the
newly incorporated AIAL on 1 April 1988.

[35]
Section 9 of the Auckland Airport Act dissolved the joint venture deeds and
by s 4(6) AIAL was deemed to be an airport company within the meaning and for the
purposes of the Airport Authorities Act 1966 (“Airport Authorities Act”). AIAL
was, by s 3D of the Airport Authorities Act, deemed to be a “Government work” for
the purposes of the PWA 1981. A new definition of “public work” was introduced
to the PWA 1981 by s 2(5) of the Public Works Amendment Act (No 2) 1987 which
came into force on 31 March 1987. The new definition provided that “Government
works” are “public works”. This, as Hugh Williams J noted (at [103]), confirmed
that the airport, now incorporated as AIAL, was a public work.
[36]
The effect of these statutory changes was that, from 1 April 1988, AIAL
could be subject to the s 40 regime if the requirements of that section were triggered.
[37]
The other reason for the trust land’s previous exemption from the s 40 regime
disappeared: see [28] above. The land was no longer held by a joint venture, with
the consequence that s 224(19) was not available to AIAL.
[38]
We are satisfied that from 1 April 1988 AIAL was subject to the s 40 regime.
It did not take on, however, any potential Crown liability under s 40. In that respect,
we differ from the conclusion reached by Hugh Williams J.
[39]
The joint venture was not subject to the s 40 regime while it remained in
existence. There was no potential liability to be passed on in any event.
[40]
Moreover, we consider that s 7(4) of the Auckland Airport Act vested the
assets in AIAL free from any potential liability under the PWA 1981.
[41]
Further, s 7(1)(c) of the Auckland Airport Act provided further protection to
the Crown. It provided that nothing effected or authorised by the Act should be
regarded as placing the Crown, the ARA, any constituent authority or any other
person in breach of any enactment, which would include the PWA 1981.
[42]
Finally, the Auckland Airport Act provided for all the assets and liabilities of
the joint venture to be listed, with values attributed to each asset and liability: see s 6.
Those assets and liabilities were then specified in an Order in Council (s 6(3)) and

then transferred to AIAL. The obvious intent of this statutory provision was that
AIAL should acquire a clean balance sheet, with all its assets and liabilities correctly
valued and approved by Order in Council. No potential liabilities under s 40 with
respect to the trust land or any other airport land were mentioned in the statutory list.
[43]
The Auckland Airport Act was further amended by the Civil Aviation
Amendment Act 1992. Section 39 of that Act added new subs (4A) to s 7. The new
subs (4A) provided that, where land had been transferred under the Auckland Airport
Act, ss 40 and 41 of the PWA 1981 applied to the land “as if the company were the
Crown and the land had not been transferred under this Act”.
[44]
This interpretation explains why the enactment of subs (4A) attracted little
attention in the debates and submissions on the Civil Aviation Amendment Bill.
Subsection (4A) was not applying ss 40 and 41 to AIAL for the first time, because
those sections had been in effect from 1 April 1988. It clarified to whom an offer
back would be made if airport land became surplus.
[45]
Our conclusion is consistent with the observations of this Court in
Port Gisborne Ltd v Smiler [1999] 2 NZLR 695. That case involved consideration
of the Port Companies Act 1988, s 26 of which provided that when land was
transferred to port companies, s 40 of the PWA 1981 did not apply to the transfer,
but that after the transfer s 40 applied as if a port company were a Harbour Board
and the land had not been transferred. The Court in Smiler held that the purpose of s
26 was twofold: first, to avoid argument that transferring land to a port company
triggered s 40, and secondly, to make plain that the transfer did not deprive a person
having the right given by s 40 in respect of Harbour Board land of that right.
[46]
The answer to the second question on appeal must, therefore, be yes. When
the airport was vested in AIAL, the joint venture deeds were dissolved and the
exemption from the s 40 offer-back regime conferred by s 224(19) of the PWA 1981
ceased to apply to AIAL. The critical date was 1 April 1988. It was on that date that
AIAL became subject to s 40 of the PWA 1981, and the mechanics of that position
were clarified by s 7(4A) of the Civil Aviation Amendment Act 1992.

Scope of the public work
[47]
As cases under s 40 of the PWA 1981 go, the present one is unusual in that it
does not involve land having been acquired for some future activity which has not
come to fruition or where, over the course of time, there has been a diminution of the
activity and land at the periphery is no longer necessary. Indeed, under s 40 the
original purpose for which land was acquired is only one part of the issue. Section
40 is directed to land “held for a public work”. The focus must be on why it is held
rather than simply on the purpose for which it was acquired.
[48]
We accept AIAL’s submission that the inquiry as to why the land is now held
is not limited to the specific words which were used in the documents that effected
the initial acquisition. Rather, there must be an overall assessment of what was
contemplated in terms of the land’s development and use, and what continues to be
contemplated in those respects.
[49]
The historical development of Auckland Airport leaves no room for debate
that the entire area of over 1,000 hectares was acquired so that the grand vision of
New Zealand’s primary international airport could be implemented. From the
project’s outset, it was the intention of government (and subsequently of local
authorities) to create a major gateway airport that would include not merely an
airstrip and adjoining terminal, but both air-side and land-side functions, ancillary
commercial activity and land available for expansion and development. All the
contemporary evidence, and particularly the establishment deeds, reflect a
commitment to a major national activity which inevitably would involve ongoing
development and in respect of which flexibility and adaptability to advances in
aviation technology and requirements had to be hallmarks.
[50]
In light of this practical reality, it is unduly semantic to read down this
complex inquiry by technical dissection of the word “aerodrome” which appeared in
the first Gazette Notice.
[51]
The PWA 1981 defined “aerodrome” in the following way:

Aerodrome means any defined area of land or water intended or designated
to be used either wholly or partly for the landing, departure, movement, and
servicing of aircraft; and includes any buildings, installations, roads, and
equipment on or adjacent to any such area used in connection with the
aerodrome or its administration; and also includes any defined air space
required for the safe operation of aircraft using the aerodrome; and also
includes a military airfield.
[52]
The more modern word, “airport”, is defined in the Airport Authorities Act
1966 in a manner which resonates with the earlier provision:
Airport means any defined area of land or water intended or designated to be
used either wholly or partly for the landing, departure, movement, or
servicing of aircraft; and includes any other area declared by the Minister to
be part of the airport; and also includes any buildings, installations, and
equipment on or adjacent to any such area used in connection with the
airport or its administration.
[53]
As Mr Carruthers realistically accepted in his submissions:
What is said to be “used in connection with the aerodrome” will always be a
matter of fact and degree in the context of the 1981 Act, however under the
statutory definition it will always have to be connected to the core
aerodrome activities. How “connected” any given use is with the
aerodrome, will exist on a spectrum.
[54]
Two reports preceded the development of Auckland Airport, both of which
support AIAL’s submission that airport development and planning is a dynamic and
long-term exercise. The first of those reports was the Tymms Report, which was
commissioned by the Crown in 1948 and prepared under Sir Frederick Tymms
(leader of the United Kingdom Civil Aviation Mission) on the organisation,
administration and control of civil aviation in New Zealand. The second was the
Fisher Report, which was commissioned by the Crown and Auckland mayors and
prepared by airport planning company Leigh, Fisher and Associates, on probable
future airport developments. Those two reports, and, even more expressly, the
principal and supplementary deeds, make abundantly clear that the development of
Auckland Airport was not a short-term endeavour. Nothing which occurred in the
subsequent privatisation of AIAL altered that.
[55]
In his extensive judgment, Hugh Williams J (from [115] to [206]) undertook
a painstaking analysis of the evidence which had been given by the opposing
aviation experts: Mr Morris Garfinkle (who was an attorney, former part-owner of

an airline and experienced aviation consultant of 20 years), called by the Craigie
Trust, and Mr Peter Smith (an engineer specialising in airport planning and
development for more than 35 years), called by AIAL.
[56]
The Judge also analysed evidence from other witnesses including Mr Donald
Huse (who had been the airport’s Chief Executive Officer), Mr Wayne McDonald
(an engineer with the airport for eight years) and Mr Anthony Gollin (who had
initially worked for the Ministry of Transport and subsequently in various roles for
AIAL).  He also heard evidence from Mr Gregory Fordham. Mr Fordham was the
Managing Director of Airbiz Aviation Strategies Pty Ltd, a company which had been
involved in airport planning for 28 years. He was also directly involved in preparing
the Auckland Airport 1988 and 1990 development plans, the 2005 master plan and
the 2007 draft freight master plan.
[57]
The issue before Hugh Williams J, in light of the competing expert and
historical material, was whether, for the purposes of determining whether land was
held for a public work in terms of s 40, a cohesive approach to characterising the
land was required or whether there could be a patchwork assessment of specific
parcels of land within the total area which was loosely called “the airport”.
[58]
He undertook an analysis of the use of the word “aerodrome”. He was bound
to do so, since the word had featured so heavily in much of the evidence and
submissions. However we consider that focus on that word is misplaced and
unhelpful.
[59]
This Court recently has considered the ambulatory interpretation to be
accorded to words which have fallen out of common usage: see Big River Paradise v
Congreve [2008] 2 NZLR 402.  Like Hugh Williams J, we are satisfied that an
ambulatory approach to the word “aerodrome” and what is encompassed if such a
concept has changed significantly over time, should be adopted in this case.
[60]
We endorse Hugh Williams J’s conclusion that:
[200]  An ambulatory interpretation of the word “aerodrome” can therefore
properly be held to encompass the facilities commonly found at airports –

Auckland International in particular – and changing over time to what was
and is now available.
[61]
There can be no question that, on 1 January 1988, the entire 1,000 hectares
were held for a public work, namely, the provision, expansion and development of a
modern airport, with all its connected and associated operational, administrative and
commercial activities.
[62]
An important element of the appellants’ argument before us was that some of
the trust land was used for activities which could be viewed as purely commercial,
rather than strictly necessary for the functioning of the airport. Mr Carruthers drew
our attention to a number of commercial facilities developed on the land. These
included:
•  NZ Post (operating since 1979);
•  Service stations (operating since 1993);
•  Flyways (operating since 1995);
•  Retail banking services (operating since 1997);
•  Car rental facility (operating since 1997);
•  Office space – leased to companies unrelated to the operation of Auckland
Airport and marketed accordingly (operating since 2000);
•  Koru Club Car Care – providing parking and valet service for elite customers
(operating since 2000);
•  Toyota car dealership (operating since 2000);
•  Fast food restaurants – including McDonalds, Dunkin Donuts, Subway and St
Pierre’s Sushi (operating since 2001);

•  Warehouse Stationery – providing low-priced office and stationery products
(operating since 2001);
•  Foodtown – a large-scale supermarket (operating since 2001);
•  Fedex (operating since 2001);
•  Priority Fresh (operating since 2002);
•  Butterfly Creek – offering a playground with a train circulating the wetlands
with a new crocodile attraction, a petting zoo, a bar and cafe and wedding
facilities marketed across the city (operating since 2003); and
•  Treasure Island Adventure Golf – offering children’s attractions such as mini
golf and a large pirate ship (operating since 2003).
It was also noted that the much of the land acquired from the appellants remained
undeveloped.
[63]
The appellants also stressed that, in the 30 years since the land was acquired,
there have been only three occasions on which strictly “airport” facilities have been
even proposed for the land. None of these proposals came to fruition.
[64]
The appellants argue that the High Court Judge adopted a fallacious approach
by assuming that because it was desirable or convenient to have land available for
activities adjacent to the public work, the criteria for retention were met.
[65]
Mr Carruthers strenuously argued that the appellants’ land would never have
met the test for compulsory acquisition on the basis of the purposes for which it is
now being used. He realistically accepted that the public work for which the land
was held included more than simply the runway (and land for future runway
development) and associated terminals. But he submitted that the purely commercial
arm of AIAL’s activities could never fulfil the necessary requirements for retention.

He acknowledged that there were grey areas in respect of cargo sheds, customs
facilities, and the like, which were harder to classify.
[66]
Whatever argument may be sustainable about land at the perimeter of the
total airport complex, we are unable to see how Mr Carruthers’s submission can
succeed in respect of a parcel of land which lies at the very core of the airport
precinct. Some of the trust land has been used for major arteries into the existing
terminals. Such land was clearly held for a public work. That conclusion is
reinforced when regard is had to the fact that a second runway near to the other side
of the land under consideration is already in contemplation.
[67]
The appellants’ entitlement to compensation was not finally settled for a
substantial period of time after the land was acquired. An initial payment was made,
and then, mostly at the request of the appellants, there was a delay before matters
were finally disposed of.
[68]
After a lengthy hearing before the Land Valuation Tribunal, an additional
award of compensation of $258,000 was made as against a claim for $434,000.
[69]
This award was made after the PWA 1981 came into force. At no time while
the compensation claim was in train was it suggested that the land was not being
held or used for aerodrome or airport purposes. The compensation claim was
predicated on the current and likely ancillary commercial uses, which the Craigie
Trust acknowledged were occurring.
[70]
That apart, on the land acquired from the Craigie Trust, there has been
developed:
•
Air New Zealand flight catering kitchens;
•
the realignment of George Bolt Drive;
•
the construction of Tom Pearce Drive;

•
the AFFCA Building which provided facilities for freight forwarders
operating from Auckland Airport;
•
provision for various utility activities; and
•
the construction of the Aviation Turbine Fuel Pipeline (“AVTUR
pipeline”).
[71]
Since AIAL’s incorporation, there has been an increase in commercial
activity on land which has otherwise not been utilised. All of this has been done on
the basis of short-term development. AIAL has always been able to ensure that, in
the medium to long-term, any direct aviation functions would not be compromised
by other activity.
[72]
It is instructive to note that, at one point, a second runway would have
included the trust land and other taxiways and land-side aviation support, as well as
an access road. In a further development plan, there was a possibility of the land
being used as part of a passenger terminal and commercial support services. None of
these projects are in and of themselves decisive of the issue before us, but they
demonstrate the flexibility which is essential in a public work such as a modern
airport. Assessing the nature of the airport as a whole, regard must be had to the
needs for parking, shopping, and ancillary service requirements. Such services are
necessary when there is not only an ever-increasing number of tourists using the
airport, but an ever-increasing number of staff permanently supporting its operation,
and who work in a somewhat isolated area where there is a need for everyday
commerce.
[73]
Mr Carruthers relied heavily on publications issued by AIAL which show a
distinction between aeronautical and non-aeronautical activities. Particular emphasis
was placed on Board papers and development plans throughout the last decade,
which demonstrated that there was concentrated attention to the commercial property
portfolio and the possibility of exploiting more effectively the value of the land by
undertaking commercial activities, which were not necessarily an adjunct to the core
activity of running an international airport.

[74]
We are satisfied that the entire area of land described in the Auckland Airport
Act continues to be held by AIAL for airport purposes.
[75]
The evidence does not demonstrate that there are, on a realistically discrete
basis, segments of land within that whole which are no longer held for that airport
purpose.  We accept that some segments may be being used for other purposes in the
meantime and some areas have not been developed. However, that is the very nature
of a modern international airport precinct. To hold that those segments ought to be
cleaved off from the whole and offered back, would be quite unworkable.
[76]
The contention that the appellants’ land could be carved out so that one was
left with a patchwork of land held by the respondent interspersed with, and splintered
by, land belonging to private owners, is unrealistic. If the appellants’ former land
could be treated in this fractured way just because parts of it are not currently in use,
the same standard would have to apply to the land of other former owners. Such an
outcome would wholly frustrate the flexibility that is necessary for planning, co-
ordination, development and responding to changing demands for a modern
international airport.
[77]
The particular circumstances which may be shown to exist in a particular
segment of land in the AIAL precinct are not the issue.  We are satisfied that
Hugh Williams J was correct to conclude that the land acquired from the appellants
is integral to the operation and activities of the respondent, and continues to be held
and used for the purposes for which it was acquired.
[78]
Although we are satisfied that, as at 1 April 1988, AIAL became subject to
s 40 of the PWA 1981, the use to which AIAL has put and is putting the relevant
land is within the scope of the public work for which the land is held, and for which
it is still required.
“Impracticable, unreasonable or unfair” and the “character” of the land
[79]
We agree with Hugh Williams J that the onus would be on AIAL, if the land
was no longer required for a public work, to demonstrate either that it would be

“impracticable, unreasonable or unfair” to require it to be offered back to the
appellants, or that the character of the land had changed such that AIAL was
exempted, by s 40(2)(b), from offering it back. The issue does not arise, but for
completeness we refer briefly to the point.
[80]
Hugh Williams J said that had it been necessary to so decide, he would have
concluded that it would not have been impracticable to require the whole of the
Craigie Trust land to be offered back, but Mr Carruthers had a fall-back position in
the High Court which attracted the Judge.
[81]
At our request, counsel offered a preliminary view as to the sort of order the
Court should consider if the issue of buy-back arose.
1
Pursuant to s 40(2) of the 1981 Act the respondent shall offer to sell
the land (allotment 508) Parish of Manurewa, and comprised in
certificate of title 78D/195, North Auckland Land Registry),
excluding all formed roads which includes George Bolt Memorial
Drive and Tom Pearce Drive and the flight kitchen on Tom Pearce
Drive, to the appellants at the current market value of the land as at
1 April 1988 or some later date.
2
On conditions that the appellants grant in favour of the respondent
the following matters in relation to Areas A, B, C and D of the Land,
as identified on the plan attached to this judgment.
Area A
(a)
Easements as necessary to protect the Avtur Pipeline and any other
services; and
(b)
A licence or ground lease for the power station at nominal rental, or,
a separate title to be granted for the land required for that power
station; and
(c)
A boundary realignment to exclude the shopping centre at the North
Western aspect of the land; and
(d)
A ground lease at current market rental and on reasonable terms for
those buildings and associated improvements already on the land.
Area B
(e)
A ground lease at current market rental and on reasonable terms and
for those buildings and associated improvements already on the land.

Area C
(f)
A ground lease at current market rental and on reasonable terms and
for those buildings and associated improvements already on the land.
Area D
(g)
A ground lease at current market rental and on reasonable terms for
those buildings and associated improvements already on the land.
3
Any issues as to the practical implementation of these orders are to
be determined at a separate remedy hearing before the trial Judge
(including but not limited to the current market rent for the ground
leases).
[82]
Hugh Williams J concluded that, although there would be practical
difficulties in requiring the whole of the land to be returned, they would not be
insuperable. The Judge envisaged the type of arrangement outlined in
Mr Carruthers’s suggested order.
[83]
Nonetheless, the Judge held that if necessary he would have concluded that it
would have been unreasonable or unfair to require AIAL to offer back the land, as
the Auckland International Airport was “an infrastructural asset of critical
importance to the New Zealand economy” (at [214]).
[84]
Having spoken about its important and contemporary role as the major
international airport in the country, the Judge said:
[216]  In part, Auckland International’s success in fulfilling that role has
resulted from its ability to plan, install facilities and react to evolving
aviation and users’ requirements unconstrained by lack of land or the need to
take the interests of other landowners within its present boundary into
account.  It has, sensibly, dealt with land use by users in a way which
maintains maximum flexibility to accommodate future changes.
[85]
The Judge also found that, in terms of s 40(2)(b), there had been a significant
change in the character of the land formerly owned by the appellants.
[86]
We disagree with the Judge that it would not have been impracticable for
AIAL to offer back the land to the appellants, but we endorse his view that it would
have been unreasonable and unfair, and with his conclusion that there had been a
significant change in the character of the land so that AIAL was exempted from
offering it back.  In light of the passage of time and the radical alteration of the entire

area of the airport precinct, offering back parts of the land could not be appropriate
on any basis.
Conclusion
[87]
As a result, the judgment should be explained. First, by order A, we dismiss
the Craigie Trust’s appeal. Their claim to have the land transferred back rightly
failed.
[88]
Secondly, AIAL’s cross-appeal is also essentially dismissed. We have
changed the wording of the two declarations contained in Hugh Williams J’s
order A. His order A(2) was a declaration that AIAL was subject to the obligations
in s 40 of the PWA 1981. That is not the position. Although the Craigie Trust land
is held for a public work in terms of the PWA 1981, AIAL is not subject to the
obligations in s 40 as nothing has happened to trigger the obligations set out in that
section.
[89]
Thirdly, Hugh Williams J’s second declaration, in order A(3), is also no
longer appropriate in light of our discussion.  We see no significance in the particular
phraseology of “aerodrome” and “airport”. We prefer a simpler declaration to the
effect that the Craigie Trust land is “still required for a public work, namely the
Auckland International Airport”.
[90]
Fourthly, we do not consider Hugh Williams J’s order B was truly an order.
It expressed the Judge’s view in the event that he was wrong on what he otherwise
held. What would or should have happened in the event of a finding that the land
was no longer required for a public work does not arise on our view of the case
either. Like Hugh Williams J, we have expressed an opinion on the matter, but,
again like his comments, our comments are not decisive. The Judge’s order B was
not an order at all. For that reason, we have not quashed it – there is nothing to
quash – even though our view on this matter is slightly different from the Judge’s.
[91]
The Craigie Trust must pay AIAL costs on the appeal. This appeal comes
within the definition of a “complex appeal”.  It justified the retention of senior QCs

on both sides, and for that reason we have provided for an uplift of 50 per cent in
terms of r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005. The appeal should
be treated as having taken the full two days of the hearing.
[92]
Although AIAL had some success on its cross-appeal, we hold that the fair
result is that costs should lie where they fall with respect to that. This means AIAL
should not recover for its preparation costs on the cross-appeal.

Solicitors:
Meredith Connell, Auckland, for Appellants
Russell McVeagh, Auckland, for Respondent

From:
Annabel Hawkins
@chapmantripp.com>
Sent:
Tuesday, 14 March 2023 10:34 am
To:
Hearings Administrator
Subject:
RE: Legal submissions
Attachments:
CHCDOC01-#1915399-v4-Legal_submissions_pORPS.pdf
Hi Kate

Yes sure – please see attached

Kind regards

ANNABEL HAWKINS
SENIOR ASSOCIATE
Chapman Tripp
D:

M:

LEGAL ADMINISTRATOR:

www.chapmantripp.com

From: Hearings Administrator <[email address]>
Sent: Tuesday, 14 March 2023 10:28 am
To: Annabel Hawkins <
@chapmantripp.com>
Subject: Legal submissions

Hi Annabel,

Could you please send through a PDF of CIAL’s legal submissions so that I can upload these to the website.

Kind regards,

Kate McKinlay
Hearings Administrator

P
| M

@orc.govt.nz
www.orc.govt.nz

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1

Before the Hearings Panel
Appointed by the Otago Regional Council

under:  the Resource Management Act 1991
in the matter of:  submissions and further submissions in relation to the
Proposed Otago Regional Policy Statement 2021
(excluding parts determined to be a freshwater planning
instrument)
and:  Christchurch International Airport Limited
Submitter 0307

Legal submissions on behalf of Christchurch International
Airport Limited

Dated: 14 March 2023

Reference:
JM Appleyard ([email address])

ARC Hawkins ([email address])

chapmantripp.com
PO Box 2510
Auckland
T +64 3 353 4130
Christchurch 8140
Wellington
F +64 3 365 4587
New Zealand
Christchurch

1
MAY IT PLEASE THE HEARINGS PANEL
INTRODUCTION AND SUMMARY
1
These legal submissions are presented on behalf of Christchurch
International Airport Limited (CIAL).
2
CIAL is a submitter (#0307) and further submitter on the proposed
Otago Regional Policy Statement (pORPS).
3
In summary, CIAL is generally supportive of the pORPS.  CIAL’s key
concern, as outlined in its submission and evidence, is to ensure
that the pORPS is suitably forward-looking.  As a planning document
with a decade-long vision, the pORPS should anticipate the region’s
future needs and contain a framework that recognises development,
in particular the development of infrastructure, to meet those
needs.
4
The focus of CIAL’s evidence and hearing presentation is the
“regionally significant infrastructure” definition (the RSI Definition).
As notified, the RSI Definition refers only to the region’s existing
airport infrastructure assets.  The RSI Definition needs to provide
for the planning and development of new airport infrastructure in
the lifetime of the pORPS to serve the region’s air connectivity
needs.
5
These submissions provide a high level overview of CIAL’s interests
in the pORPS.  They briefly address the statutory framework and
then turn to several legal points in relation to the amendments CIAL
seeks to the RSI Definition.
6
CIAL will call evidence from Mr Rhys Boswell (Project Lead
Planning and Sustainability at CIAL) and Mr Matthew Bonis
(Planner, Planz Consultants).
CIAL’S INTERESTS IN THE PORPS
Background to CIAL
7
As set out in Mr Boswell’s evidence:
7.1
CIAL owns and operates Christchurch International Airport,
the largest airport in the South Island and the second-largest
in the country.
7.2
CIAL has a strong, proven performance in planning,
developing and operating long-term transport infrastructure
assets that fulfil a significant role both regionally and
nationally.
100512432/1915399

2
7.3
CIAL is actively championing a sustainable future within the
aviation sector.  This includes developing airport
infrastructure that is resilient to climate change effects and
that deploys low carbon aviation to assist with New Zealand’s
transition to a low emissions economy.
8
CIAL is currently assessing the feasibility of developing a new
sustainable airport in Central Otago to serve the air capacity and
connectivity demands of the fast growing Central Otago and
Queenstown-Lakes areas.
9
Mr Boswell’s evidence outlines the work CIAL is undertaking in
detail.  In particular, he addresses the demand for new airport
infrastructure in the Otago region, specifically in Central
Otago/Queenstown-Lakes, and the implications of a changed and
changing climate for the ongoing functioning of existing airport
infrastructure and the development of new airport infrastructure.
10
Mr Boswell’s evidence illustrates that there will be a need to, at
minimum, plan for, if not develop new airport infrastructure over the
lifetime of the pORPS.
CIAL’s interests in the pORPS
11
CIAL’s submission and further submission are generally supportive
of the provisions contained in the pORPS, including those that relate
to infrastructure that are the subject of this hearing.
12
CIAL maintains its submission and further submission and seeks
that the Hearings Panel consider all of its submission points in its
decision-making.  However, CIAL has focused for the purposes of
this hearing on the changes it seeks to the RSI Definition.
13
CIAL’s position is that it is critical that the pORPS, as the
overarching planning document for the Otago region, is sufficiently
forward-looking when it comes to anticipating and providing for the
infrastructure needs of the region into the future.
14
As notified, the RSI Definition does not achieve these requirements.
It is effectively backward-looking in respect of existing airport
infrastructure only.  The changes CIAL seeks to the RSI Definition to
address this issue are set out in Mr Bonis’ evidence and repeated for
ease of reference below:
Regionally Significant Infrastructure means:
…
(6) airports and aerodromes used for regular air transport services
by aeroplanes capable of carrying more than 30 passengers, and
includes the following airports: Dunedin, Queenstown, Wanaka,
Alexandra, Balclutha, Cromwell, Oamaru, Taieri.
100512432/1915399

3
15
In our submission, these changes are necessary for the pORPS to
meet the relevant statutory requirements and to be a meaningful
high-level planning document for the Otago region.
16
As notified, the RSI Definition is “stuck in time”, with no recognition
that there may (and, in fact, will) be a need for additional airport
infrastructure in the foreseeable future.  This is not an appropriate
position in the key strategic planning document for the region.
STATUTORY AND LEGAL MATTERS
Statutory framework
17
The Hearings Panel will be well aware of the relevant statutory
framework.  However, given the deficiencies alleged in the RSI
Definition, we reiterate briefly that the purpose of a regional policy
statement is to achieve the purpose of the Resource Management
Act 1991 (RMA) by providing an overview of the resource
management issues of the region and policies and methods to
achieve integrated management of the natural and physical
resources of the whole region.1
18
A regional council must prepare its regional policy statement in
accordance with, inter alia:2
18.1  its functions under section 30;
18.2  the provisions of Part 2; and
18.3  its obligation (if any) to prepare and have regard to an
evaluation report prepared in accordance with section 32.
19
Sections 5(2)(a),3 6(h),4 7(i),5 30(1)(a),6 30(1)(ba),7 30(1)(gb)8
and 32 are of particular relevance in this decision-making context.
The themes of these sections include meeting the reasonably
foreseeable needs of future generations, integrated management of

1 Resource Management Act 1991, s 59.
2 Resource Management Act 1991, s 61(1).
3 “[S]ustaining the potential of natural and physical resources (excluding minerals) to
meet the reasonably foreseeable needs of future generations;”
4 “[T]he management of significant risks from natural hazards.”
5 “[T]he effects of climate change.”
6 “[T]he establishment, implementation, and review of objectives, policies, and
methods to achieve integrated management of the natural and physical
resources of the region:”
7 “[T]he preparation of objectives and policies in relation to any actual or potential
effects of the use, development, or protection of land which are of regional
significance:”
8 “[T]he strategic integration of infrastructure with land use through
objectives, policies, and methods:”
100512432/1915399

4
land use and infrastructure, and managing climate change risks.  All
of these sections point to a future-looking planning regime.
20
Section 32 of course requires consideration of whether the
objectives of the pORPS are the most appropriate way to achieve
the purpose of the RMA, whether the provisions are the most
appropriate way to achieve the objectives, and an assessment of the
benefits and costs of the environmental, economic, social and
cultural effects anticipated from the implementation of the
provisions.
Legal matters
21
In the following paragraphs we address several legal matters in
relation to the amendments CIAL seeks to the RSI Definition.
Does the RSI Definition meet the relevant statutory
requirements?
22
The RSI Definition, as it relates to airport infrastructure, does not
achieve the relevant statutory requirements outlined above
because:
22.1  As notified, the RSI Definition lists in an exhaustive manner
(by the use of the word “means”) the existing airports in the
Otago region.  It does not contemplate new airport
infrastructure and it is even unclear whether and to what
extent it refers to upgrades or expansions to those existing
airports.
22.2  It therefore has to be assumed that the drafters consider the
existing airport infrastructure is sufficient to meet the region’s
air connectivity needs now and for the lifetime of the pORPS.
However, this inconsistent with the supporting section 32
assessment and Mr Boswell’s evidence outlines that the
opposite is true.  That is, there will be demand for additional
airport infrastructure in the region in the foreseeable future,
which will need to be at least planned for, if not built, in the
lifetime of the pORPS.
22.3  The fact that the exhaustive RSI Definition refers only to
existing airports does not allow for strategic integrated
management of the region’s residential and
commercial/industrial growth together with air infrastructure
needs.  Nor does it allow for the management of climate
change risks and challenges through new airport
infrastructure.  As Mr Boswell’s evidence explains, climate
change factors are already influencing and will continue to
impact our national infrastructure network.
22.4  The RSI Definition (a proposed provision) is not the most
appropriate way to meet the objectives of the pORPS,
100512432/1915399

5
because the relevant objectives, particularly those in the
Infrastructure and Transport sections, contain themes of
effectiveness, efficiency, resilience,9 supporting economic
development and growth,10 integration,11 adaptability to
changes in demand,12 and reduction of greenhouse gas
emissions/reliance on fossil fuels.13  A definition that is “stuck
in time” fails to achieve these objectives.
22.5  The drafting related to airports is also strangely inconsistent
with the remainder of the RSI Definition and it is unclear why
it is drafted differently.  Other subsections of the RSI
Definition are not limited to existing infrastructure assets, for
example in relation to renewable electricity generation.14
22.6  Failing to recognise and enable new regionally significant
airport infrastructure in the context of a proposed regional
policy statement is inconsistent with Part 2 of the RMA.  In
simple terms, it does not provide a clear and appropriate way
for the pORPS to enable the social economic well-being of the
region’s people and communities.
23
Ultimately, the impact of the RSI Definition as notified is that it will
preclude proper and appropriate consideration of a proposal for any
new airport infrastructure under the planning regime because the
pathway for considering new infrastructure is tied to the RSI
Definition.
24
Instead, such a proposal may need to meet different and more
onerous thresholds, for example in relation to managing adverse
effects.15  This would be a perverse outcome for the region’s
foreseeable future air connectivity needs.
25
The pORPS ought to enable consideration of new infrastructure
projects that meet demands and that strive to increase resilience
and deliver a low emissions economy.  Such a proposal should be
able to be put forward without failing at the first “definition” hurdle,
then the merits be fully tested under the planning framework.
26
In addition, there are implications beyond the pORPS.  The RSI
Definition not only engages other provisions in the pORPS, it also

9 EIT-INF-O4 and EIT-TRAN-O7.
10 EIT-INF-O4.
11 EIT-INF-O5.
12 EIT-TRAN-O8.
13 EIT-TRAN-O9.
14 For example, Subsection (3) is proposed as “renewable electricity generation
facilities that connect with the local distribution network…”.
15 See EIT-INF-P13.
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engages with other key documents in the RMA planning framework.
Most of the higher-order national policy statements and national
environmental standards have outcomes that are tied to “specified
infrastructure” (for example, the National Policy Statement for
Highly Productive Land 2022 and the National Environmental
Standards for Freshwater 2020).  The lower-order regional and
district plans for the Otago region must give effect to the pORPS.16
It is important that the pORPS gets the definition right, so that there
can be proper consideration of new proposals within the broader
planning regime.
27
In our submission, the issues with the RSI Definition outlined above
can be resolved through the amendments proposed by CIAL.
Are the amendments sought by CIAL appropriate or
necessary for the decade-long lifetime of the pORPS?
28
The amendments CIAL seeks to the RSI Definition are to facilitate
consideration of new airport infrastructure.  To be clear, the
amendments do not seek to enable new airport infrastructure, they
simply seek an appropriate planning pathway for consideration of
new airport infrastructure to meet the region’s air connectivity
needs.
29
This necessarily requires consideration of timeframes and raises the
questions of if and when new airport infrastructure might be
required and whether this is in the lifetime of the pORPS.
30
Mr Boswell’s evidence outlines the levels of demand for air
connectivity in the region, referring both to passenger and freight
demand.  His evidence illustrates that additional demand already
exists and that it will increase substantially over the medium to
long-term.  Mr Boswell’s evidence addresses demand management
but the short point is that there is demand that will need to be met
and this will require additional capacity to be planned for, if not
built, within the lifetime of the pORPS.
31
Infrastructure necessarily has long lead-times and infrastructure
forecasting looks well into the future.  The situation here is no
different and the pORPS needs to provide for this.
32
It is important that the pORPS does not preclude opportunities for
new infrastructure assets, such as the prospect of a new airport in
Central Otago, before the merits of such a proposal can be properly
considered and assessed.

16 Resource Management Act 1991, sections 67(3)(c) and 75(3)(c).
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Does a cross-reference to “nationally significant
infrastructure” in the RSI Definition address CIAL’s
concerns?
33
The Section 42A Report for Chapter 11 recommends the following
insertion into the RSI Definition:
(13) Any infrastructure identified as nationally significant
infrastructure.
34
CIAL supports this amendment because the definition of “nationally
significant infrastructure” includes airports used for regular air
transport services by aeroplanes capable of carrying more than
30 passengers.
35
However, the amendment does not fully address CIAL’s concerns.
CIAL continues to seek its proposed amendments to the RSI
Definition because airports constitute both nationally and regionally
significant infrastructure and are recognised as such for different
purposes.  While there will be overlap, different aspects and
functions of an airport (existing and new) contribute to its national
and regional significance.
36
Further, the two definitions must necessarily stand alone.  It should
be clear in applying the RSI Definition under the relevant pORPS
provisions that it encompasses new airport infrastructure.  It would
be impractical and could become unworkable or contradictory to
have to refer back to the definition of “nationally significant
infrastructure” in respect of airports. There is no need to follow such
a tortuous drafting path.
37
For the above reasons, CIAL’s amendments to the RSI Definition
remain necessary despite the Section 42A Report recommendations.
Is it appropriate to refer to “airports and aerodromes” in the
RSI Definition?
38
As set out above, CIAL seeks that the RSI Definition refers to
“airports and aerodromes”.
39
The evidence of Mr Bonis outlines legislative documents which use
“airport” and/or “aerodrome”.17  While effectively synonymous, they
are not always treated with clear consistency.  Therefore, for the
purposes of clarity, in our submission, both of these terms should be
included in the RSI Definition.

17 Statement of Evidence of Mr Bonis dated 23 November 2022 at [40].
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40
The interpretation of “airport” and “aerodrome” was at the heart of
McElroy v Auckland International Airport Limited.18  The High Court
and Court of Appeal considered the range of activities which fall
within the word “airport” and, conversely, whether commercial
activities not directly linked to core aviation activities carried out on
land owned by Auckland Airport fell within the definition of the word
“aerodrome”.
41
The High Court decision contains the following useful summary of
relevant statutes using the phrase “aerodrome” and “airport”:
[31]  The Civil Aviation Act 1964 – … – defined “aerodrome” as:
“Aerodrome” means any defined area of land or water
intended or designed to be used either wholly or partly for the
landing, departure, movement, and servicing of aircraft; and
includes any buildings, installations, and equipment on or
adjacent to any such area used in connection with the
aerodrome or its administration:
[32]  Interestingly, the Authorities Act – passed only two years
later - contains no definition of “aerodrome” but defines “airport” as:
“Airport” means any defined area of land or water intended or
designed to be used either wholly or partly for the landing,
departure, movement, or servicing of aircraft; and includes
any other area declared by the Minister to be part of the
airport; and also includes any buildings, installations, and
equipment on or adjacent to any such area used in connection
with the airport or its administration.
[33]  The 1981 Act contains no definition of “airport” but repeats
the definition of “aerodrome” from the Civil Aviation Act 1964 and
adds:
And also includes any defined air space required for the safe
operation of aircraft using the aerodrome; and also includes a
military airfield.
[34]  The Civil Aviation Act 1990 contains no definition of “airport”
and repeats the 1964 definition of “aerodrome”, though dividing it at
the semi-colon into subparagraphs.

18 McElroy v Auckland International Airport [2009] NZCA 621; and McElroy v
Auckland International Airport Ltd CIV 2006 404 005980 27 June 2009 Williams J
HC.

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[35]  Section 3 of the Authorities Act empowers airport authorities
to establish and carry on airports. That was amended by the Airport
Authorities Amendment Act 1986 to define an “airport company”
and, of relevance to this claim, with effect from 18 December 1986
enacted s 3D of the Authorities Act which, in the form current from
1991, reads:
3D. An airport operated or managed by an airport authority
which is not a local authority shall – …
(b) For the purposes of the Public Works Act 1981, be
deemed to be a Government work.
42
The definition of “airport” in the RMA is similar to the statutes
discussed above, therefore the McElroy case can be taken as
authoritative on the interpretation of the word “airport”:
Airport means any defined area of land or water intended or
designed to be used, whether wholly or partly, for the landing,
departure, movement, or servicing of aircraft:
43
The McElroy case usefully outlines the history of New Zealand
airports.19  Relevantly, it states:
3. … Both the aeronautical user and the airport management should have
a common interest in the development of non-flight airport revenue
sources…
…
6. It must be recognised that airport “operations” (the movement of air
traffic) have a corollary in airport “commerce”, demanding prompt
appraisal and decision on local business opportunities and promotion.
This broad division of the airport into two major components materially
assisted the development of airport policy within the concept now
accepted in New Zealand.
44
The experts for both sides in McElroy were agreed on what the term
“airport” means.  However, there was some debate over the phrase
“aerodrome” and whether it was synonymous with “airport”.
45
The Court adopted the “ambulatory approach” to interpretation and
found:
“[200] That approach can properly be adopted in this case. The
evidence clearly showed that, for almost all users, interpretation of
the word “aerodrome” and what was expected at such a facility
changed significantly over time. By 1981 most persons asked to

19 At [37].
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define “aerodrome” would have described the facilities then found at
airports such as Auckland International. By 1987 their views may
have changed to accommodate any increased facilities then expected
to be available at airports. If required to define “aerodrome” now,
such a person is likely again to revert to the present facilities at
airports, particularly Auckland International. An ambulatory
interpretation of the word “aerodrome” can therefore properly be
held to encompass the facilities commonly found at airports –
Auckland International in particular - and changing over time to what
was and is now available.
…
[202]  Examples include the provision of banking facilities for the
millions of travellers and thousands of staff at Auckland Airport and
the rental car and campervan parking and the supermarket servicing
airport users and inbound tourists. Food outlets can be similarly
regarded. Even Butterfly Creek, though primarily recreational, offers
convention facilities, now an important facility at airports.
[203]  Additional points supporting the interpretation adopted but
with specific reference to AIAL is the strong commercial and
developmental thrust of the Airport Act. Further, the Vesting Order
vested the airport’s land in the company together with rights and
licences “relating to it or to the operations and activities of the
airport”. That formula indicates that defining an area “wholly or
partly … used in connection with the aerodrome or its administration”
should encompass land uses relating to the “operations and activities
of the airport”. That meshes with the corporatization and
privatization adopted for New Zealand airports from the mid- 1980s
and fortifies the view that Mr Smith’s evidence is to be preferred in
deciding what comes within the definition of “aerodrome” (or
“airport”) and facilities “wholly or partly … used in connection with
the aerodrome or its administration”.
…
[205]   For all those reasons the conclusion on this part of the case is
accordingly that the Craigie Trust land was and is held for the public
work of a modern day “aerodrome” or a modern day “airport”.
Alternatively, if it was no longer required for the public work of
“aerodrome”, it is required for another public work, namely an
“airport”.
46
On this basis, the phrases “aerodrome” and “airport” have been,
and continue to be, used synonymously and it is therefore
appropriate and necessary for the RSI Definition to refer to both.
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CONCLUSION
47
CIAL’s principal concern is to ensure that the RSI Definition, as it
relates to airport infrastructure, is not drafted in an exhaustive
manner such that it precludes consideration of new airport
infrastructure to meet the region’s needs under the pORPS and
broader planning regime.
48
The amendments CIAL seeks to the RSI Definition do not require the
Hearings Panel to make a merits assessment of a new airport in the
Otago region.  The amendments simply ensure that if such a
proposal is put forward, by CIAL or others, the planning regime
appropriately allows fulsome assessment of the proposal, rather
than foreclosing that opportunity from the outset.
49
In our submission, it is vital that the overarching planning
framework for the Otago region be forward-looking, future-proof
and able to anticipate and allow consideration of new infrastructure
assets that serve current and future community needs.
50
The exhaustive drafting of the RSI Definition as notified, as it relates
to airports, does not future-proof the pORPS.  It does not account
for future upgrading or development of new types of infrastructure
that may emerge over the lifetime of the pORPS.
51
In our submission, the Hearings Panel should accordingly accept the
relief sought by CIAL and amend the RSI Definition as per the
evidence of Mr Bonis and as set out at paragraph 14 above.

Dated: 14 March 2023

_____________________________
J Appleyard / A Hawkins
Counsel for Christchurch International Airport Limited

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